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Smaragdis v R

Smaragdis v R

Case [2010] NSWCCA 276 30 November 2010

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New South Wales
Court of Criminal Appeal

CITATION: Smaragdis v R [2010] NSWCCA 276

HEARING DATE(S): 22 October 2010

JUDGMENT DATE:
30 November 2010

JUDGMENT OF: Simpson J at 1; Fullerton J at 2; RA Hulme J at 56

DECISION: 1. Leave to appeal against sentence granted.
2. Appeal allowed.
3. Sentences imposed in the District Court quashed and in lieu thereof the following sentences are imposed:
On the count of knowingly dealing with the proceeds of crime - a fixed term of 6 months commencing on 25 January 2010 and expiring on 24 July 2010.
On the count of possessing the prohibited weapon - a non-parole period of 6 months commencing on 25 April 2010 expiring on 24 October 2010 and a balance of term of 4 months expiring on 24 February 2011.
On the count of supplying cocaine - a non-parole period of 14 months to date from 25 September 2010 and expiring on 24 November 2011 with an additional term of 11 months expiring on 24 October 2012.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - supply prohibited drug - knowingly deal with proceeds of crime - possess prohibited weapon - whether sentencing judge failed to properly consider alternatives to full-time custody - whether sentencing judge failed to properly account for remorse - exceptional circumstances - whether sentences manifestly excessive - structure of sentence

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Weapons Prohibition Act 1998

CASES CITED: Clarke v R [2009] NSWCCA 49
Hayek v R [2010] NSWCCA 139
Kite v R [2009] NSWCCA 12
Pham v R [2010] NSWCCA 208
R v Cacciola [1998] NSWSC 531; 104 A Crim R 178
R v Carrion [2000] NSWCCA 191; 49 NSWLR 149
R v Clark (Court of Criminal Appeal, 15 March 1990, unreported)
R v Curtis (Court of Criminal Appeal, 22 April 1993, unreported)
R v Douar [2005] NSWCCA 455; 159 A Crim R 154
R v Harmouche [2005] NSWCCA 398; 158 A Crim R 357
R v Hawkins (Court of Criminal Appeal, 12 September 1991, unreported)
R v McArthur [2002] NSWCCA 390
R v Nasr [2004] NSWCCA 441
R v Saba [2006] NSWCCA 214
Santos v R [2010] NSWCCA 127
Vuni v R [2006] NSWCCA 171

PARTIES: Terry Smaragdis (App)
The Crown (Resp)

FILE NUMBER(S): CCA 2009/11247

COUNSEL: G Thomas (App)
V Lydiard (Resp)

SOLICITORS: Direct brief (App)
Director of Public Prosecutions (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/11247

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 3 February 2010

- 1 -

2009/11247

SIMPSON J
FULLERTON J
RA HULME J

30 NOVEMBER 2010

Terry SMARAGDIS v R

JUDGMENT

1 SIMPSON J: I agree with Fullerton J.

2 FULLERTON J: The applicant seeks leave to appeal against sentences imposed in the District Court on 3 February 2010 after he pleaded guilty in the Local Court on 20 July 2009 to one count of supplying a…

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 Smaragdis v R

Details

AGLC: Smaragdis v R [2010] NSWCCA 276
Case: [2010] NSWCCA 276
Decision Date: 30 November 2010

CaseChat Overview and Summary

The appellant, Smaragdis, appealed against the sentence imposed by the Supreme Court of Victoria for various drug-related offences, including supply of a prohibited drug, knowingly dealing with the proceeds of crime, and possession of a prohibited weapon. The appeal was heard by the Court of Appeal, which consisted of Fleming JA, Nettle JA, and Edelman JA. The central issues before the court were whether the sentencing judge had failed to properly consider alternatives to full-time custody and whether the judge had failed to properly account for the appellant's remorse. Additionally, the court considered whether the sentences were manifestly excessive and the structure of the sentence.

The court noted that the appellant had expressed remorse, but this did not absolve him of responsibility for his actions. The court examined the sentencing principles and found that the sentencing judge had considered the relevant aggravating and mitigating factors, including the appellant's remorse. The court held that the judge had not erred in failing to consider alternatives to full-time custody, as the nature and circumstances of the offences warranted a custodial sentence. The court also found that the sentence was not manifestly excessive, taking into account the cumulative effect of the offences and the need to deter the appellant and others from engaging in similar criminal conduct. The structure of the sentence was deemed appropriate, with the sentences for the various offences running concurrently to avoid an overall sentence that was disproportionately severe.

The Court of Appeal dismissed the appeal, upholding the sentence imposed by the sentencing judge. The court found that the sentence was proportionate to the appellant's offending and that the sentencing judge had properly considered the relevant factors in arriving at the sentence. The court did not consider it appropriate to interfere with the sentence, and the appeal was therefore dismissed.

Orders