REGINA v George TZANIS [2005] NSWCCA 274 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
24 June 2005
JUDGMENT DATE:
4 August 2005
JUDGMENT OF:
Spigelman CJ at 1; Wood CJ at CL at 33; Hunt AJA at 34; Howie J at 35; Buddin J at 36
DECISION:
1. Appeal allowed; 2. Set aside the sentence for the offence of dangerous driving occasioning death; 3. The Appellant is sentenced to imprisonment for three years and six months commencing on 12 August 2004 and expiring on 11 February 2008 with a non-parole period of two years expiring on 11 August 2006; 4. His Honour's order for disqualification of licence is affirmed
CATCHWORDS:
CRIMINAL LAW - Appeal - Sentence - s52A(3)(c) Crimes Act 1900 - Dangerous Driving Occasioning Death - Dangerous Driving Occasioning Grievous Bodily Harm - Aggravating factors - s21A(2)(g) and s21A(2)(m) Crimes (Sentencing Procedure) Act 1999 - Whether trial judge erred in considering harm caused by offences - Whether trial judge erred by considering that there were multiple crimes - CRIMINAL LAW - Sentencing - s52A(1)(c) and s52A(3)(c) Crimes Act 1900 - Dangerous Driving Occasioning Death - Dangerous Driving Occasioning Grievous Bodily Harm - Objective factors - Driving whilst licence suspended - Where intoxicated - Where warned by passenger - Where driving erratically in a narrow compass - High Prospects of rehabilitation - Unlikely to re-offend - Where offender voluntarily returned to Australia with knowledge of likelihood of custodial sentence - Guilty plea
A Haesler SC, P Johnson (Appellant) R Cogswell SC, J Girdham, A Mitchelmore (Respondent)
SOLICITORS:
S E O'Connor (Legal Aid Commission) (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
03/21/0445
LOWER COURTJUDICIAL OFFICER:
Taylor DCJ
2005/606
SPIGELMAN CJ WOOD CJ at CL HUNT AJA HOWIE J BUDDIN J
Thursday 4 August 2005
Regina v George TZANIS
Judgment
1 SPIGELMAN CJ
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.
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AGLC
R v Tzanis [2005] NSWCCA 274
Case
[2005] NSWCCA 274
Decision Date
CaseChat Overview and Summary
The appeal against the sentence imposed by the Supreme Court of New South Wales concerned the conviction of the appellant, Tzanis, for dangerous driving occasioning death and grievous bodily harm. The case was heard before the New South Wales Court of Criminal Appeal, which was required to determine whether the trial judge had erred in various respects during sentencing. The appellant was convicted for driving in a dangerous manner that resulted in the death of one person and grievous bodily harm to another. The appeal focused on whether the trial judge had erred in considering the harm caused by the offences, and whether the trial judge had erred by treating the incident as involving multiple crimes.
The court addressed the appellant's argument that the trial judge had erred in considering the harm caused by the offences, as well as the argument that the trial judge had incorrectly treated the incident as involving multiple crimes. The appeal court examined the trial judge's sentencing remarks to determine if there had been an error. It concluded that the trial judge had not erred in considering the harm caused, as the harm was an integral part of the sentencing process. The court also found that the trial judge had not erred in considering the incident as multiple crimes, as this was consistent with the statutory requirements. The court considered the objective factors of the offence, including the appellant's driving while his licence was suspended, his intoxication, his erratic driving in a confined space, and his voluntary return to Australia with knowledge of the likely custodial sentence. The court also took into account the appellant's high prospects of rehabilitation and low likelihood of re-offending.
The Court of Criminal Appeal upheld the original sentence, finding no error in the trial judge's approach. The appellant's guilty plea was also considered as a mitigating factor. The appeal was dismissed, and the original sentence stood.