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R v Louizos

R v Louizos

Case [2009] NSWCCA 71 20 March 2009

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Reported Decision: 194 A Crim R 223

New South Wales

Court of Criminal Appeal

CITATION: Louizos v R, R v Louizos [2009] NSWCCA 71

HEARING DATE(S): 11/12/2008

JUDGMENT DATE:
20 March 2009

JUDGMENT OF: McClellan CJatCL at 1; Grove J at 2; Howie J at 3

DECISION: The appeal against conviction is dismissed. The Crown appeal against sentence is allowed. The sentence imposed in the District Court is quashed. In lieu the appellant is sentenced to a term of imprisonment comprised of a non-parole period of 10 years and a balance of term of 3 years 6 months. The sentence is to commence on 25 September 2008 and the appellant is eligible to be released to parole on 24 September 2018.

CATCHWORDS: Criminal Law - Evidence - telephone intercepts - police cease monitoring calls for period - whether further intercepts unlawful - whether evidence inadmissible under s 137 Evidence Act. Practice and Procedure - failure to give Jones v Dunkel direction against Crown - whether miscarriage of justice - Verdict - evidence of accomplice - whether verdict unreasonable. Appeal - Certificates by trial judge under s 5(1)(b) of Crown Appeal Act - purpose of granting certificate. Sentence - Crown Appeal - Solicit to murder - failure to making finding as to objective seriousness of offence where standard non-parole period - error in finding motive mitigating - sentence manifestly inadequate.

LEGISLATION CITED: Crimes Act 1900 - s 26
Evidence Act - ss 38, 55, 90, 137, 138, 165
Criminal Appeal Act 1912 - ss 5(1)(b)C, 5F
Criminal Appeal Rules - r 4
Telecommunications (Interception and Access) Act 1979 (Cth) - ss 7, 57, 77
Crimes (Sentencing Procedure) Act 1999 - s 21A

CATEGORY: Principal judgment

CASES CITED: Pellegrino v DPP [2008] NSWCCA 17; 243 ALR 556
R v Harker [2004] NSWCCA 427
House v The King (1936) 55 CLR 499
R v SJRC [2007] NSWCCA 142
Jones v Dunkel (1959) 101 CLR 298
Mahmood v Western Australia (2008) HCA 1; 232 CLR 397
T v Riscuta and Niga [2003] NSWCCA 6
Dyers v The Queen [2002] HCA 45; 210 CLR 285
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
MLP v R [2006] NSWCCA 271; 164 A Crim R 93
Mencarious v R [2008] NSWCCA 237

PARTIES: Freda Louizos v Regina, Regina v Freda Louizos

FILE NUMBER(S): CCA 2008/00000599

COUNSEL: L Wells - Crown
I Lloyd QC with J Doris - Appellant

SOLICITORS: S Kavanagh - Crown
P Hardin - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/31/1000

LOWER COURT JUDICIAL OFFICER: Woods DCJ

LOWER COURT DATE OF DECISION: 25/09/2008

2008/00000599

McCLELLAN CJ at CL
GROVE J
HOWIE J
FRIDAY 20 MARCH 2009

Freda LOUIZOS v R

R v Freda LOUIZOS

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 GROVE J: I agree with Howie J.

3 HOWIE J: After trial by jury the appellant was convicted of a charge that between…

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 Louizos

Details

AGLC: Louizos v The Queen [2009] NSWCCA 71
Case: [2009] NSWCCA 71
Decision Date: 20 March 2009

CaseChat Overview and Summary

The appellant was convicted of soliciting another person to murder. The primary issue before the court was whether the trial judge erred in finding that the motive for the crime was a mitigating factor. The court also considered whether the judge failed to give a Jones v Dunkel direction to the jury, and if so, whether this constituted a miscarriage of justice. Furthermore, the court examined whether the telephone intercept evidence was admissible under section 137 of the Evidence Act and whether the verdict was unreasonable given the evidence of the accomplice.

The court found that the trial judge did not err in considering the motive as a mitigating factor, even though the statutory non-parole period had not been reached. However, the court held that the sentence was manifestly inadequate because the judge failed to make a finding as to the objective seriousness of the offence. The court also determined that the failure to give a Jones v Dunkel direction did not amount to a miscarriage of justice. Regarding the telephone intercepts, the court concluded that the evidence was admissible under section 137 of the Evidence Act, as the police had ceased monitoring the calls for a period before continuing. Finally, the court found that the verdict was not unreasonable given the evidence of the accomplice.

The court granted the certificates by the trial judge under section 5(1)(b) of the Crown Appeal Act, recognising that the appeal related to the adequacy of the sentence. The court held that the sentence was manifestly inadequate and ordered a re-sentencing hearing. The court did not interfere with the conviction, finding that the evidence was sufficient and the verdict was not unreasonable. The matter was remitted to the sentencing court for a new sentencing hearing.

The final orders included the remittal of the case to the sentencing court for a new sentencing hearing to determine an appropriate sentence reflecting the objective seriousness of the offence. The court did not quash the conviction or order a new trial, as it found the evidence sufficient and the verdict not unreasonable. The appellant's conviction was upheld, but the sentence was deemed inadequate and required reassessment.

Orders