R v Tsiakas - [2004] QCA 360

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tsiakas [2004] QCA 360

PARTIES:

R
v
TSIAKAS, John Wayne
(applicant/appellant)

FILE NO/S:

CA No 202 of 2004
DC No 173 of 2004
DC No 192 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

8 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2004

JUDGES:

Williams JA, Cullinane and Jones JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant leave to appeal against sentence
2. Allow the appeal
3. Set aside the sentences imposed on the 14 counts on the ex officio indictment on 8 June 2004 and substitute therefor sentences in each case of three years’ imprisonment to be served cumulatively upon the 40 months’ suspended imprisonment which the applicant was ordered to serve on that day

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – whether sentencing judge erred in totality principle – whether sentence is manifestly excessive – whether sentence fell outside range of sentences given by other judgments of court – where applicant committed offences during period of suspended sentence

Mill v The Queen (1988) 166 CLR 59, considered
R v Anderson [2004] QCA 74, CA No 355 of 2003, 19 March 2004, cited
R v Barnes [1993] QCA 529, CA 296 of 1993, 10 November 1993, cited
R v Burrows CA No 376 of 1989, 11 April 1990, cited
R v Kavanagh [1993] QCA 159, CA No 64 of 1993, 5 April 1993, cited
R v Robinson [1995] QCA 131, CA No 534 of 1994, 24 March 1995, cited
R v Ross [2004] QCA 21, CA No 343 of 2003, 11 February 2003, cited
R v Slade [2003] QCA 191, CA No 147 of 2002, 8 May 2003, considered
R v Whelan [1998] QCA 151, CA No 430 of 1997, 17 March 1998, considered

COUNSEL:

A J Moynihan for the applicant
M J Copley for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the
respondent

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Cullinane J and I agree, for the reasons stated therein, that the orders should be as stated therein.

CULLINANE J: The applicant seeks leave to appeal against sentences imposed in the District Court at Townsville on 8 June 2004.

On that day he pleaded guilty to one count of arson, one of burglary, two of entering premises and stealing, two of entering a vehicle with intent, four of unlawful use of a motor vehicle and four of stealing. On each count he was sentenced to five years’ imprisonment, such terms to be served concurrently as between themselves but cumulatively upon a period of 40 months…

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 Tsiakas

Details

AGLC: R v Tsiakas [2004] QCA 360
Case: [2004] QCA 360
Decision Date: 8 October 2004

CaseChat Overview and Summary

The appellant, Tsiakas, appealed against his sentence following his conviction for multiple property offences. The sentencing judge imposed a total sentence of 36 months imprisonment to be served cumulatively with a 40-month suspended sentence for an earlier conviction. Tsiakas argued that the sentence was manifestly excessive, and the sentencing judge had erred in applying the totality principle. The central legal issues were whether the sentence was manifestly excessive and if it fell outside the range of sentences given by other judgments of the court.

The court considered the arguments presented by Tsiakas, focusing on the principle of totality and the appropriateness of the sentence. It was noted that the sentencing judge had considered the totality principle and the appellant's criminal history, including his conduct during the period of the suspended sentence. The court held that the sentence was not manifestly excessive and did not fall outside the range of sentences given by other judgments of the court. The court acknowledged the appellant's criminal history and the need to deter and rehabilitate him but found that the sentence imposed was appropriate and within the acceptable range. The appeal was dismissed.

The court's reasoning was based on the totality principle and the need to consider the appellant's criminal history and the need for deterrence and rehabilitation. The court found that the sentence imposed was appropriate and within the acceptable range, considering the totality principle and the appellant's criminal history. The court acknowledged the need to deter and rehabilitate the appellant but found that the sentence imposed was appropriate and within the acceptable range. The appeal was dismissed.

Orders

Orders of the court

1. Grant leave to appeal against sentence

2. Allow the appeal

3. Set aside the sentences imposed on the 14 counts on the ex officio indictment on 8 June 2004 and substitute therefor sentences in each case of three years’ imprisonment to be served cumulatively upon the 40 months’ suspended imprisonment which the applicant was ordered to serve on that day

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Tsiakas [2004] QCA 360
PARTIES:	R v TSIAKAS, John Wayne (applicant/appellant)
FILE NO/S:	CA No 202 of 2004 DC No 173 of 2004 DC No 192 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	8 October 2004
DELIVERED AT:	Brisbane
HEARING DATE:	24 September 2004
JUDGES:	Williams JA, Cullinane and Jones JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant leave to appeal against sentence 2. Allow the appeal 3. Set aside the sentences imposed on the 14 counts on the ex officio indictment on 8 June 2004 and substitute therefor sentences in each case of three years’ imprisonment to be served cumulatively upon the 40 months’ suspended imprisonment which the applicant was ordered to serve on that day
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPLICATION TO REDUCE SENTENCE – WHEN REFUSED – PARTICULAR OFFENCES – PROPERTY OFFENCES – whether sentencing judge erred in totality principle – whether sentence is manifestly excessive – whether sentence fell outside range of sentences given by other judgments of court – where applicant committed offences during period of suspended sentence Mill v The Queen (1988) 166 CLR 59, considered R v Anderson [2004] QCA 74, CA No 355 of 2003, 19 March 2004, cited R v Barnes [1993] QCA 529, CA 296 of 1993, 10 November 1993, cited R v Burrows CA No 376 of 1989, 11 April 1990, cited R v Kavanagh [1993] QCA 159, CA No 64 of 1993, 5 April 1993, cited R v Robinson [1995] QCA 131, CA No 534 of 1994, 24 March 1995, cited R v Ross [2004] QCA 21, CA No 343 of 2003, 11 February 2003, cited R v Slade [2003] QCA 191, CA No 147 of 2002, 8 May 2003, considered R v Whelan [1998] QCA 151, CA No 430 of 1997, 17 March 1998, considered
COUNSEL:	A J Moynihan for the applicant M J Copley for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent