Stavropoulos v The Queen - [2018] NSWCCA 12

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Stavropoulos v R [2018] NSWCCA 12
Hearing dates: 12 February 2018
Date of orders: 19 February 2018
Decision date: 19 February 2018
Before: Hoeben CJ at CL at [1];
Price J at [33];
Fullerton J at [34]
Decision:
(1) Leave to appeal granted.
(2) The appeal is dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – supply prohibited drug and possess unauthorised and prohibited weapons – so called “Clark principle” applied by sentencing judge – error in approach of sentencing judge established – need to re-sentence – no lesser sentence warranted in law – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – s 93FA(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 3A, 11
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Criminal Procedure Act 1986 (NSW) – s 166
Drug Misuse and Trafficking Act 1985 (NSW) – ss 10(1), 25(1)
Firearms Act 1996 (NSW) – s 7(1)
Weapons Prohibition Act 1998 (NSW) – s 7(1)
Cases Cited: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Parente v R [2017] NSWCCA 284
R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep)
Robertson v R [2017] NSWCCA 205
Category: Principal judgment
Parties: George Stavropoulos – Applicant
Regina – Respondent Crown
Representation:
Counsel:
A Parsons – Applicant
S Dowling SC – Respondent Crown
Solicitors:
R Zhou – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2015/2943032015/304017
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

20 April 2017

Before:

Berman SC DCJ

File Number(s):

2015/294303
2015/304017

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty to the following counts:

Supply prohibited drug (s 25(1) Drug Misuse and Trafficking Act 1985 (NSW)). The maximum penalty for this offence is imprisonment for 15 years and/or a fine of $200,000. There is no standard non-parole period.
Unauthorised possession of a pistol (two counts) (s 7(1) Firearms Act 1996 (NSW)). The maximum penalty for this offence is imprisonment for 14 years. There is a standard non-parole period of 4 years.
Possession of a prohibited weapon (s 7(1) Weapons Prohibition Act 1998 (NSW)). The maximum penalty for this offence is imprisonment for 14 years. There is a standard non-parole period of 5 years.

There were four offences taken into account on a Form 1.

Possession of a knife in a public place.

Unauthorised possession of a pistol (two offences).

Possession of a prohibited weapon.

Three offences were dealt with pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

Possess cannabis (s 10(1) Drug Misuse and Trafficking Act).

Possess fireworks (s 93FA(2) Crimes Act 1900 (NSW)).

Possess amphetamine (s 10(1) Drug Misuse and Trafficking Act).

Judge Berman SC sentenced the applicant for those offences on 20 April 2017. His Honour imposed an aggregate sentence. The applicant was…

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 Stavropoulos v The Queen

Details

AGLC: Stavropoulos v The Queen [2018] NSWCCA 12
Case: [2018] NSWCCA 12
Decision Date: 19 February 2018

CaseChat Overview and Summary

Stavropoulos was found guilty of supplying a prohibited drug and possessing unauthorised and prohibited weapons. He appealed against his sentence, arguing that the judge had made an error in applying the so-called "Clark principle" during sentencing. The central legal issue was whether the sentencing judge had correctly applied the principles of sentencing, specifically whether the judge had erred in applying the "Clark principle" and whether this error warranted a re-sentencing or a lesser sentence.

The court found that the sentencing judge had indeed erred in applying the "Clark principle." This principle, originating from the case of R v Clark, involves the consideration of the relative seriousness of multiple offences when determining an appropriate sentence. The court held that this error necessitated a re-sentencing. However, upon re-evaluating the appropriate sentence, the court determined that no lesser sentence was warranted in law, given the nature and circumstances of the offences committed. As a result, the appeal was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal against sentence was dismissed, and Stavropoulos's original sentence was confirmed. The court's decision underscored the importance of correctly applying sentencing principles, particularly the "Clark principle," while also affirming that any error in sentencing does not automatically lead to a lesser sentence if the original sentence remains appropriate.

Orders