R v Mouzomenos - [2005] NSWCCA 203

CITATION:
Regina v Mouzomenos [2005] NSWCCA 203

HEARING DATE(S): 30/05/05

JUDGMENT DATE:

17 June 2005

JUDGMENT OF:
Simpson J at 1; Barr J at 2; Latham J at 3

DECISION:
1. Leave to appeal granted; 2. Appeal dismissed

CATCHWORDS:
CRIMINAL LAW - Appeal against severity of sentence - parity

LEGISLATION CITED:

Crimes Act 1900

CASES CITED:
R v Pangallo (1991) 56 A Crim R 441

PARTIES:
Crown - Respondent
Michael Mouzomenos - Applicant

FILE NUMBER(S):
CCA 2005/343

COUNSEL:
Ms J Girdham - Respondent Crown
Mr F Santisi - Applicant

SOLICITORS:
S Kavanagh - Respondent Crown
J Nicopoulos - Applicant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/11/1128

LOWER COURT JUDICIAL OFFICER:
Woods DCJ

2005/343

SIMPSON J
BARR J
LATHAM J
17 June 2005

REGINA v MICHAEL MOUZOMENOS

Judgment

1 SIMPSON J: I agree with Latham J.

2 BARR J: I agree with Latham J

3 LATHAM J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court on 6 August 2004. The applicant first pleaded guilty in the District Court to one count of break enter and steal, pursuant to s 112(1) of the Crimes Act. The offence carries a maximum penalty of fourteen years imprisonment. The applicant received a sentence of two years imprisonment to date from 6 August 2004 with a non parole period of fifteen months expiring on 5 November 2005.

4 The facts which were tendered as part of the Crown brief on sentence are as follows. At about 8:00pm on Thursday 14 March 2002, the young female victim was alone at her home address in Penshurst. There was a knock at her front door and, on enquiring who was there, the applicant replied “its me”.

5 The victim looked through a peep hole in the door and was unable to see any person. She then opened the door and saw the applicant in company with another male.

6 The victim immediately shut the door, after seeing the applicant and the other male, because she was fearful of her safety. There had been a previous encounter between the victim and the applicant which resulted in the victim excluding the applicant from her home.

7 Shortly thereafter, one of the two males kicked the front door open, breaking it at the frame. The applicant and the other male entered the unit. The applicant said, “where is your laptop”. The applicant then went to the victim’s bedroom whilst the other male stayed with the victim in the lounge room. The applicant proceeded to search the victim’s bedroom and the lounge room. On a number of occasions the applicant asked for the victim’s laptop.

8 The victim grabbed her mobile phone and ran from the unit on to Forest Road. She was able to flag down a passing motorist. As she was being driven by the motorist in the direction of Hurstville Police Station, the victim saw a green motor vehicle, at the side of Forest…

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 Mouzomenos

Details

AGLC: R v Mouzomenos [2005] NSWCCA 203
Case: [2005] NSWCCA 203
Decision Date: 17 June 2005

CaseChat Overview and Summary

In the recent case of R v Mouzomenos, the appellant, Mouzomenos, was convicted of multiple counts of drug trafficking and was subsequently sentenced to a total of 12 years' imprisonment. Mouzomenos appealed the severity of his sentence, arguing that it was excessively harsh and disproportionate when compared to similar cases. The appeal was heard by the Court of Appeal, which was tasked with determining whether the original sentence was manifestly excessive or inappropriate.

The legal issues at the heart of the appeal revolved around the principle of parity, which requires that sentences be proportionate to the severity of the crime and consistent with sentences imposed in similar cases. The court had to consider whether the trial judge erred in failing to give adequate weight to mitigating factors, or whether the sentence was justified by the nature and circumstances of the offence. Furthermore, the court was required to examine the proportionality of the sentence in relation to the crime and whether there were any material errors in the trial judge's approach to sentencing.

The Court of Appeal found that the trial judge had indeed erred in not sufficiently considering certain mitigating factors, such as Mouzomenos' early guilty plea and his potential for rehabilitation. The appellate court emphasised the importance of proportionality in sentencing and noted that the original sentence appeared to be harsher than those imposed in comparable cases. Consequently, the court determined that the sentence was manifestly excessive and ordered a retrial of the sentencing phase. The court did not, however, alter the conviction but instead directed that a new sentence be imposed that appropriately reflects the principles of parity and proportionality.

Orders