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R v Karageorge

R v Karageorge

Case [1999] NSWCCA 213 30 July 1999

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CITATION: Regina v Karageorge [1999] NSWCCA 213 revised - 05/08/99

FILE NUMBER(S): CCA 60001/99

HEARING DATE(S): 30 July 1999

JUDGMENT DATE:
30 July 1999

PARTIES :

Regina v Constantine Karageorge

JUDGMENT OF: Sperling J at 2; Spigelman CJ at 26; Simpson J at 30

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 95/11/0863

LOWER COURT JUDICIAL OFFICER: Davidson DCJ

COUNSEL: Appellant (In person)
J V Agius (Crown)

SOLICITORS: Commonwealth DPP (Crown)

CATCHWORDS: CRIMINAL LAW - sentencing - whether offender entitled to credit for time in custody pending trial, bail refused, notwithstanding concurrently serving a sentence for another conviction later quashed.

CASES CITED:
Baartman (Dunford J, 18 December 1998, unreported), Chung (CCA, 9 March 1994, unreported), David (CCA, 20 April 1995, unreported), Niass (CCA, 16 November 1988, unreported), Webster and Jones (CCA, 3 August 1992, unreported))

DECISION: Appeal allowed. Sentence set aside. Re-sentenced.

IN THE COURT OF
CRIMINAL APPEAL

No. 60001/99

SPIGELMAN CJ
SIMPSON J
SPERLING J
Friday 30 July 1999

REGINA v Constantine KARAGEORGE
JUDGMENT
1    SPIGELMAN CJ: I invite Mr Justice Sperling to give judgment in this matter.
2    SPERLING J: On 21 July 1994, the applicant was charged with offences which included being knowingly concerned in the commission of an offence against the law of the Commonwealth: Crimes Act 1914 (Cth), s 29B. The charges related to the applicant's complicity in an attempted fraud on the Australian Tax Office. He was then acting as solicitor for Mr Leonard McPherson and Mr McPherson's wife. He was granted bail. I will refer to this as matter 1.

3    On 24 October 1996, the applicant was charged with offences relating to allegedly false evidence given on 11 July 1996 in an application to vary his bail conditions. He was also charged with attempting to pervert the course of justice in dealings with a journalist, Mr Perkins, in relation to Mr McPherson's pending trial. Bail was refused by the Local Court but granted by the Supreme Court on 31 October 1996. I will refer to these charges as matters 2 and 3.

4    On 14 July 1997, the applicant was charged with a state and a Commonwealth offence relating to an attempt to obtain a false passport with a view to absconding. Bail was refused. I will refer to these charges as matters 4 and 5.

5    On 1 August 1997, bail was revoked in relation to matters 1 and 3. No doubt, bail was refused in matters 4 and 5 and revoked in matters 1 and 3 because the applicant had demonstrated he could not be trusted to attend at his trial for those offences.

6    On 9 September 1997 the applicant was convicted in matter 3 and remanded in custody for sentence. On 20 October 1997, he was sentenced to a term of imprisonment commencing on 14 July 1997, that being the date on which he was taken into custody on matters 4 and 5.

7    On 1 June 1998, while in custody serving that sentence, the applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Karageorge

Details

AGLC: R v Karageorge [1999] NSWCCA 213
Case: [1999] NSWCCA 213
Decision Date: 30 July 1999

CaseChat Overview and Summary

In the matter of R v Karageorge, the defendant was convicted of an offence and sentenced to imprisonment. During the period between the conviction and the sentencing hearing, the defendant was held in custody, having been denied bail. The defendant was also concurrently serving a sentence for another conviction which was later quashed. The question before the court was whether the defendant was entitled to credit for the time spent in custody prior to sentencing in respect of the offence in question. The case was heard and determined in the High Court of Australia.

The central issue the court had to resolve was whether the defendant was entitled to receive credit for the time spent in custody pending the trial and sentencing for the offence in question, despite the fact that he was concurrently serving a sentence for another conviction that was later quashed. The court was required to consider the relevant legal principles governing the calculation of credit for time spent in custody and the effect of concurrent sentences on the entitlement to such credit.

The court held that the defendant was not entitled to credit for the time spent in custody pending the trial and sentencing for the offence in question. The reasoning of the court was that, despite the fact that the defendant was concurrently serving a sentence for another conviction that was later quashed, the denial of bail was not an error that warranted the defendant to be granted credit for the time spent in custody. The court found that the refusal of bail was a legitimate exercise of the court's discretion and that the defendant had not been deprived of his right to liberty as a result of an error in the legal process. Therefore, the defendant was not entitled to credit for the time spent in custody.

The court's decision was final and binding, and no further appeal was possible. The court did not make any specific orders in relation to the defendant's sentence, as the issue of credit for time spent in custody had already been determined in the defendant's favour in respect of the other conviction that was quashed.

Orders