Silvano v R

Case [2008] NSWCCA 118


Reported Decision: 184 A Crim R 593

New South Wales


Court of Criminal Appeal

CITATION: SILVANO v R [2008] NSWCCA 118
HEARING DATE(S): 19 May 2008
 
JUDGMENT DATE: 

2 June 2008
JUDGMENT OF: James J at 1; Hislop J at 45; Hoeben J at 46
DECISION: 1. Grant leave to appeal.
2. Dismiss the appeal against sentence.
CATCHWORDS: CRIMINAL LAW - Sentencing - murder - whether extra-curial punishment - mathematical approach to sentencing
LEGISLATION CITED: Crimes Act
CASES CITED: Alameddine v R [2006] NSWCCA 317
Christodoulou v R [2008] NSWCCA 5 May 2008
Markarian v The Queen (2005) 79 ALJR 1048
Pearce v The Queen (1998) 194 CLR 610
R v Allpass (1993) 72 A Crim R 561
R v Barci (1994) 76 A Crim R 103
R v Clampitt-Wotton (2002) 37 MVR 340
R v Daetz; R v Wilson (2003) 139 A Crim R 398
R v Haddara (1997) 95 A Crim R 108
R v Noble [1996] 1 Qd R 329
R v Sharpe [2006] NSWCCA 255
R v Webb [2004] NSWCCA 330
PARTIES: SILVANO, Oliver v R
FILE NUMBER(S): CCA 2005/2908
COUNSEL: S Odgers SC (Applicant)
J Dwyer (Crown)
SOLICITORS: North and Badgery (Applicant)
Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 2005/1040
LOWER COURT JUDICIAL OFFICER: Hulme J
LOWER COURT DATE OF DECISION: 15 August 2006
LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 832




                          2007/2908

                          JAMES J
                          HISLOP J
                          HOEBEN J

                          MONDAY 2 JUNE 2008
SILVANO, Oliver v R
Judgment

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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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