R v Marinellis - [2001] NSWCCA 328

CITATION: REGINA v MARINELLIS [2001] NSWCCA 328

FILE NUMBER(S): CCA 60805/00

HEARING DATE(S): 6 July 2001

JUDGMENT DATE:
6 July 2001

PARTIES :

The Crown
Nikolaos Marinellis (Appl)

JUDGMENT OF: Studdert J at 47; McClellan J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0420

LOWER COURT JUDICIAL
OFFICER : Bell DCJ

COUNSEL : D M Woodburne (Crown)
P J D Hamill (Appl)

SOLICITORS: S E O'Connor (Crown)
D J Humphreys (Appl)

CATCHWORDS: SENTENCING - appeal against sentence - s 319 Crimes Act 1900 doing an act with the intent to pervert the course of justice - case where a custodal sentence was required

LEGISLATION CITED: Crimes Act 1900, s 319

CASES CITED:
Kellow and Townsend [1980] 4 Crim LJ 55
R v Nomchong, NSWCCA, unreported, 10 April 1987
R v Irwin [1999] NSWCCA 361
R v Hani Taouk (1993) 65 A Crim R 387
R v Jordan, NSWCCA, unreported, 3 November 1997
R v Purtell [2001] NSWCCA 21
R v Meissner, NSWCCA, unreported, 27 November 1992
R v Chapman NSWCCA, unreported, 21 May 1998
R v Bayeh [1999] NSWCCA 82
R v Karageorge [1999] NSWCCA 17
R v Lilley [2000] NSWCCA 57
R v Zreika [2000] NSWCCA 75

DECISION: See para 46

IN THE COURT OF

CRIMINAL APPEAL

No 60805/00

STUDDERT J

McCLELLAN J

FRIDAY, 6 JULY 2001

REGINA v Nikolaos MARINELLIS

JUDGMENT

1 McCLELLAN J: The applicant seeks leave to appeal against sentences imposed on him by his Honour Bell DCJ on 24 November 2000. The sentences were imposed in relation to two charges of doing an act with the intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900. The offence carries a significant maximum penalty of fourteen years imprisonment. Bell DCJ imposed concurrent terms of twenty months imprisonment with a non parole period of twelve months in relation to each offence. It is submitted that these sentences are manifestly excessive.

2 On 20 December 1996, the applicant was charged with sexual assault alleged to have occurred on 16 and 17 June 1994.

3 The applicant had moved from Australia to New Zealand in August 1994, and on his return in December 1996, the Australian Customs authorities informed the New South Wales police. For this reason, it was not until 20 December 1996, that the applicant was charged with the sexual assault matters, and was granted conditional bail.

4 On 27 April 1997 the applicant saw an acquaintance, Ms Carmen Lyons, as she was walking along Canterbury Road, Belmore. He gave Ms Lyons a lift in his van and told her, amongst other matters, that he had been accused of raping a thirteen year old girl who had been dressed up by her mother to look sixteen. Late in May 1997, the applicant went to Ms Lyons' unit and said to her:

"Can you get Russell and yourself and another friend or two, the more the merrier, to say that I was with you the night that…

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 Marinellis

Details

AGLC: Regina v Marinellis [2001] NSWCCA 328
Case: [2001] NSWCCA 328
Decision Date: 6 July 2001

CaseChat Overview and Summary

In the matter of Regina versus Marinellis, the defendant was convicted of committing an act with the intent to pervert the course of justice under section 319 of the Crimes Act 1900. Marinellis appealed against the custodial sentence imposed by the trial court. The issue before the court was whether the trial judge erred in sentencing Marinellis by imposing a sentence that was excessive or manifestly inadequate. The court considered the nature and circumstances of the offence, the principles of sentencing under the Act, and whether the sentence was appropriate in the context of similar cases.

The court examined the trial judge's reasoning and whether it was appropriate to impose a custodial sentence. The court noted that the offence of perverting the course of justice was serious and warranted a custodial sentence. The court found that the trial judge had properly considered the relevant sentencing principles and had exercised its discretion appropriately in imposing the sentence. The court held that the sentence was neither excessive nor manifestly inadequate and dismissed the appeal. The trial judge's sentencing decision was upheld, and Marinellis' appeal was accordingly dismissed.

The court's decision was based on the fact that the trial judge had considered the relevant factors and had exercised its discretion appropriately. The court held that the sentence was proportionate to the seriousness of the offence and was consistent with the sentencing principles set out in the Crimes Act 1900. The court noted that the offence of perverting the course of justice was a serious one and warranted a custodial sentence. The court also held that the sentence was not manifestly inadequate and that there were no grounds for interfering with the trial judge's decision. The appeal was therefore dismissed, and the sentence imposed by the trial court was upheld.

Orders