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R v Stavropoulos

R v Stavropoulos

Case [2007] NSWCCA 333 7 December 2007

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New South Wales
Court of Criminal Appeal

CITATION: REGINA v STAVROPOULOS [2007] NSWCCA 333

HEARING DATE(S): Monday 19 November 2007

JUDGMENT DATE:
7 December 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 66

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – Sentencing – Crown appeal against reduction of sentence for assistance to authorities – Principles to be applied on appeal pursuant to s.5DA Criminal Appeal Act 1912 – Whether or not undertaking to give evidence was given – No record made of an undertaking – Expectation that respondent would give evidence is not an undertaking within the meaning of s.23 Crimes (Sentencing Procedure) Act 1999

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1900
Evidence Act 1995
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Regina v O’Brien (NSWCCA, unreported, 10 June 1993)
Regina v El-Sayed [2003] 57 NSWLR 659
Regina v Waqa (2004) 149 A Crim R 143
Regina v KS [2005] NSWCCA 87
Regina v Chaaban [2006] NSWCCA 352
Regina v Douar [2007] NSWCCA 123
Regina v Sukkar [2006] NSWCCA 92

PARTIES: REGINA v
Paul STAVROPOULOS

FILE NUMBER(S): CCA 2007/3210

COUNSEL: Crown: GIO Rowling
Resp: A Bellanto QC/J Ghabrial

SOLICITORS: Crown: S Kavanagh
Resp: Shephard & Shephard

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 15/11/1131

LOWER COURT JUDICIAL OFFICER: Taylor DCJ

2007/3210

McCLELLAN CJ AT CL
HALL J
PRICE J
FRIDAY 7 DECEMBER 2007

REGINA v CRISTOS STAVROPOULOS

Judgment

1 McCLELLAN CJ at CL: I agree with Hall J

2 HALL J: The Crown, by way of notice of appeal, dated 28 June 2007 gave notice pursuant to s.5DA of the Criminal Appeal Act 1912 (NSW) whereby the Acting Deputy Director of Public Prosecutions indicated his desire to appeal to this Court against a sentence pronounced in the District Court of New South Wales at Sydney on 28 July 2006 (Taylor, DCJ).

3 The respondent was charged with an offence under s.86(2)(a) of the Crimes Act (the aggravated form of the offence of kidnapping). He originally faced trial with two co-offenders, Eric Moefili and Joseph Montinez. The co-offenders were found guilty following a second trial. The respondent was called to give evidence in the first trial by the Crown. The jury were unable to reach a unanimous verdict. On the re-trial, the Crown did not call the respondent to give evidence. This was said to be by reason of a decision by the Crown Prosecutor based upon the respondent’s departure from a statement he gave police dated 30 March 2006 in two particular respects (referred to below) and by reason of a belligerent attitude it was claimed he displayed towards those acting for the Crown at the second trial.

4 In order to understand the ways in which the Crown contended the respondent gave evidence at the first trial which was at variance with his statement, it is necessary, briefly, to refer to the factual matters relevant to the kidnapping offence.

5 The kidnap victim was Sempat Abkarian, also…

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 Stavropoulos

Details

AGLC: R v Stavropoulos [2007] NSWCCA 333
Case: [2007] NSWCCA 333
Decision Date: 7 December 2007

CaseChat Overview and Summary

In the case of R v Stavropoulos, the appellant, Stavropoulos, was convicted of various criminal offences and was subsequently sentenced. The Crown appealed against the reduction of Stavropoulos' sentence, arguing that the primary judge had applied an incorrect principle in granting the reduction based on Stavropoulos' assistance to the authorities. The appeal was heard by the Court of Criminal Appeal.

The central legal issue before the court was whether the primary judge correctly applied the principles in s.5DA of the Criminal Appeal Act 1912 in relation to the sentence reduction for assistance to authorities. The court had to determine if an expectation that Stavropoulos would give evidence constituted an undertaking within the meaning of s.23 of the Crimes (Sentencing Procedure) Act 1999. Additionally, the court considered the significance of the absence of a formal record of such an undertaking.

The Court of Criminal Appeal held that the primary judge erred in finding that Stavropoulos had given an undertaking to assist the authorities by giving evidence. The court clarified that an expectation that the defendant would provide assistance is not the same as a formal undertaking. Furthermore, the court emphasised the importance of a formal record when it comes to any agreement or undertaking made between the defendant and the prosecution regarding assistance. In the absence of such a record, the court found that the primary judge had not correctly applied the principles governing sentence reductions for assistance. As a result, the Crown's appeal was allowed, and the matter was remitted to the District Court for re-sentencing.

The court did not make any specific orders in the appeal but directed that the case be returned to the District Court for the sentencing to be reconsidered in light of the court's findings.

Orders