Retsos v Regina - [2006] NSWCCA 85

CITATION: Anthony Simon Retsos v Regina [2006] NSWCCA 85

HEARING DATE(S): 16 March 2006

JUDGMENT DATE:
28 March 2006

JUDGMENT OF: Sully J at 1; Simpson J at 34; Howie J at 35

DECISION: Leave to appeal granted; Appeal allowed to extent only of quashing orders for payment of fines totalling $80,000

LEGISLATION CITED: Crimes Act 1900 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Fines Act 1996 (NSW)
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW)
Criminal Appeal Act 1912 (NSW)

CASES CITED: Browne v Reg CCA 62, 14/3/06

PARTIES: Anthony Simon Retsos
Regina

FILE NUMBER(S): CCA 2005/2492

COUNSEL: J.A. Girdham - Crown
T. A. Game SC - Appellant

SOLICITORS: S. Kavanagh - Crown
J. M. Whitfield - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1126

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

2005/2492

SULLY J
SIMPSON J
HOWIE J
28 March 2006

Anthony Simon RETSOS v REGINA

Judgment

SULLY J:

Introduction

1 On 21 December 2004 the present applicant, Mr. Retsos, was indicted before his Honour Judge Finnane QC in the District Court at Sydney. The indictment contained four counts. The first count charged the applicant with having aided and abetted the corrupt solicitation of a pecuniary benefit. Such an offence contravenes sections 249B(1) and 249F(1) of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of imprisonment for 7 years. The second count, the third count and the fourth count each charged the applicant with having given before the Independent Commission Against Corruption evidence that was to his then knowledge false in a material particular. Any such offence contravenes section 87 of the Independent Commission Against Corruption Act 1988 (NSW) and attracts upon conviction statutory maximum penalties of either or both of imprisonment for 5 years and a fine of $22,000.

2 The applicant pleaded guilty to each such charge. He asked that there be taken into account thirty-four further instances of the giving by him of knowingly false evidence before the Independent Commission Against Corruption; and this was done by his Honour.

3 On 23 December 2004 the applicant stood for sentence. The following penalties were imposed:

Count 1 Imprisonment for 2 years commencing on 5 January 2005 and expiring on 4 January 2006, together with a fine of $50,000. This sentence of imprisonment was ordered to be served by way of periodic detention.

Count 2 Imprisonment for 1 year commencing on 5 January 2006 and expiring on 4 January 2007, together with a fine of $10,000.

Count 3 As for Count 2.

4 The three concurrent sentences of imprisonment were ordered to be served by way of periodic detention.

5 The overall effect of these penalties was to pass upon the applicant sentences of imprisonment totalling 3 years, all of the sentences to be served by way of periodic detention; and to impose as well fines totalling $80,000.

6 The applicant now seeks leave to…

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 Retsos v Regina

Details

AGLC: Retsos v Regina [2006] NSWCCA 85
Case: [2006] NSWCCA 85
Decision Date: 28 March 2006

CaseChat Overview and Summary

The case of Anthony Simon Retsos v Regina, heard by the Court of Criminal Appeal in New South Wales, involved the applicant, Retsos, appealing against the severity of the penalties imposed on him following his guilty plea to multiple counts of aiding and abetting corruption and providing false evidence. The District Court had sentenced Retsos to concurrent terms of imprisonment, to be served by way of periodic detention, and fines totalling $80,000. The appeal centered on three grounds: the excessiveness of the fines, the alleged breach of the parity principle in sentencing, and the failure to set a non-parole period.

The Court found merit in the first ground, ruling that the District Court had failed to properly consider Retsos's capacity to pay the fines as required by the Fines Act 1996 (NSW). The Court noted that the District Court's reliance on a brief, unparticularized statement in the pre-sentence report did not constitute a reasoned decision. As a result, the fines were deemed unjust and were quashed.

Regarding the second ground, the Court held that the sentences imposed did not violate the parity principle, even though Retsos and his co-offenders received seemingly similar sentences. The Court reasoned that any perceived disparity was mitigated by the fact that Retsos's sentence did not include fines, unlike his co-offenders.

The Court also agreed with the third ground, finding that the District Court had not adequately explained its decision to omit a non-parole period. However, the Court determined that this error did not warrant a reduction in the sentence's severity, emphasizing the importance of maintaining public confidence in the justice system by not diminishing the punishment for such serious offenses.

Ultimately, the Court granted leave to appeal and allowed the appeal only to the extent of quashing the orders for the payment of fines totalling $80,000, while affirming the rest of the sentence.

Orders