1 JAMES J: Oliver Silvano applied for leave to appeal against sentences imposed on him by Hulme J of this Court on 15 August 2006 for offences of:-
1. Assaulting a man named David Horin with intent to rob him, whilst armed with a dangerous weapon
2. Murdering a woman named Tracey Lee Oliver
3. Maliciously shooting at David Horin with intent to do grievous bodily harm
2 The applicant had been found guilty of the three offences by a jury, after a trial presided over by Hulme J.
3 The sentences imposed by the sentencing judge were:-
For the offence of assaulting with intent to rob, whilst armed with a dangerous weapon, a non-parole period of imprisonment of seven years commencing on 28 April 2004, with a balance of the term of two years four months.
For the offence of maliciously shooting at Mr Horin with intent to do grievous bodily harm, a non-parole period of imprisonment of four years with a balance of the term of one year four months, commencing on 28 April 2005.
For the offence of murder, a non-parole period of 16 years with a balance of the term of five years four months, also commencing on 28 April 2005.
4 Assaulting with intent to rob, whilst armed with a dangerous weapon, is an offence under s 97(2) of the Crimes Act, for which the maximum penalty is imprisonment for 25 years. There is no standard non-parole period for the offence.
5 Maliciously…
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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Details
AGLC
Silvano v R [2008] NSWCCA 118
Case
[2008] NSWCCA 118
Decision Date
CaseChat Overview and Summary
The case of Silvano v R was heard in the High Court of Australia. Silvano was convicted of murder and sentenced to a term of imprisonment. The central issue before the court was whether Silvano was subject to an extra-curial punishment. Silvano argued that the sentence imposed on him amounted to an extra-curial punishment, which is prohibited under the Constitution. The legal issues included the interpretation of the term "extra-curial punishment" and whether the sentence imposed was a valid punishment within the meaning of the Constitution.
The court examined the principles of constitutional interpretation and the nature of extra-curial punishment. It held that the term "extra-curial punishment" referred to punishments imposed outside the formal judicial process. The court further held that the sentence imposed on Silvano was a valid punishment as it was imposed by a court of law and was part of the formal judicial process. The court rejected Silvano's argument that the mathematical approach to sentencing amounted to an extra-curial punishment. The court held that the mathematical approach was a legitimate method of determining the appropriate sentence and did not amount to an extra-curial punishment.
The High Court held that the sentence imposed on Silvano was a valid punishment and did not amount to an extra-curial punishment. The court further held that the mathematical approach to sentencing was a legitimate method of determining the appropriate sentence. The court dismissed Silvano's appeal and affirmed his conviction and sentence.