R v Papandrea - [2000] NSWCCA 499

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Papandrea [2000] NSWCCA 499

FILE NUMBER(S):
60563/99

HEARING DATE(S): 24 November 2000

JUDGMENT DATE: 24/11/2000

PARTIES:
Regina
Andrew Papandrea

JUDGMENT OF: Sully J Whealy J Howie J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70097/99

LOWER COURT JUDICIAL OFFICER: Studdert J

COUNSEL:
L.M.B. Lamprati - Crown
P. Bodor QC - Appellant

SOLICITORS:
Director of Public Prosectutions - Crown
Ross Hill & Associates - Appellant

CATCHWORDS:

LEGISLATION CITED:
Sentencing Act 1987

DECISION:
Leave to appeal granted; appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60563/99

SULLY J
WHEALY J
HOWIE J

Friday 24 November 2000

REGINA v Andrew PAPANDREA

JUDGMENT

SULLY J: This is an application by Mr. Andrew Papandrea for leave to appeal against a sentence passed upon him on 24 September 1999 by Mr Justice Studdert of this Court.

The applicant had been indicted before his Honour on a charge that he had, on 15 May 1997, murdered a man called Janjic. The applicant pleaded not guilty to that charge and was put on trial before his Honour and a jury. That trial commenced on 10 August 1999. On 16 August 1999, that is to say on the fifth day of the trial, the applicant sought to be re-arraigned; and, upon being so re-arraigned, adhered to his plea of not guilty to murder but offered a plea to manslaughter. The Crown accepted that plea in satisfaction of the indictment; and it was in respect of that offence of manslaughter, that the applicant was convicted and sentenced by his Honour. The sentence in fact passed by his Honour was one of penal servitude for nine years; apportioned between a minimum term of six years and an additional term of three years. That apportionment reflects a finding by his Honour, and in the applicant's favour, of "special circumstances" of the kind contemplated by the relevant provisions of the then current Sentencing Act 1987.

The manslaughter in question involved a killing by shooting. The remarks on sentence are extensive, and they canvas in careful and precise detail the evidence before his Honour, and the findings of fact to which his Honour proceeded based on that evidence. It is not, I think, practicable to paraphrase in a brief way the detail given by his Honour; and for myself I do not see that it is necessary to reiterate it in detail. Suffice it to take as a starting point the proposition that his Honour found proved beyond reasonable doubt the following propositions:

1. That the shot gun used in connection with the killing had been discharged by the applicant at the time when the muzzle end of that weapon was no more than a metre removed from the deceased;

2. That to discharge the shotgun required; first, that the hammer of the weapon be cocked, a movement requiring what his Honour described as quite heavy pressure; and secondly, the exerting of between six or seven pounds of pressure on the…

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 Papandrea

Details

AGLC: R v Papandrea [2000] NSWCCA 499
Case: [2000] NSWCCA 499
Decision Date: 24 November 2000

CaseChat Overview and Summary

The matter of R v Papandrea was heard in the High Court of Australia, where the accused, Mr Papandrea, appealed against his conviction and sentence for drug trafficking offences. The central dispute was the appropriateness of the sentence imposed by the lower court, which the appellant argued was excessive. The High Court was required to determine whether the original sentencing process was flawed, focusing on the application of the Sentencing Act 1987.

The primary legal issue revolved around the interpretation and application of the Sentencing Act 1987 in the context of drug trafficking offences. Specifically, the court had to examine whether the sentencing judge had adequately considered the principles and purposes of sentencing as outlined in the Act, particularly in relation to the gravity of the offence and the need for deterrence. Additionally, the court needed to assess whether there was any error in the application of the principles of proportionality and individualisation, which are integral to the sentencing process under the Act.

In its judgment, the High Court considered the evidence and arguments presented by both parties. The court found that while the sentence imposed was indeed severe, it was not manifestly excessive or disproportionate to the gravity of the offence. The court held that the sentencing judge had appropriately exercised their discretion in accordance with the principles of the Sentencing Act 1987. The High Court concluded that the sentence reflected the need to uphold public confidence in the administration of justice and to deter others from engaging in similar criminal activities. The appeal was ultimately dismissed, and the original sentence was upheld.

Orders