Tassis v The Queen - [2017] NSWCCA 143

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Tassis v R [2017] NSWCCA 143
Hearing dates: 8 June 2017
Date of orders: 26 June 2017
Decision date: 26 June 2017
Before: Hoeben CJ at CL at [1]
Bellew J at [2]
Fagan J at [33]
Decision:
Leave to appeal against sentence is refused.

Catchwords: CRIMINAL LAW – Appeal – Sentence – Applicant convicted of firearms and drug offences – Whether sentencing discretion was constrained by the maximum penalty – Whether an inappropriately severe sentence was imposed – No error found – Leave to appeal refused
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: Adzioski v R [2013] NSWCCA 69
Hayek v R [2016] NSWCCA 126
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Category: Principal judgment
Parties: Dimitri Terry Tassis – Applicant
Crown – Respondent
Representation:
Counsel:
S Buchen – Applicant
N Adams - Crown
Solicitors:
Matouk Joyner – Applicant
C Hyland, Solicitor for Public Prosecutions – Crown

File Number(s): 2013/35942
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

15 December 2015

Before:

Hosking SC ADCJ

File Number(s):

2013/35942

Judgment

HOEBEN CJ AT CL: I agree with Bellew J.
BELLEW J: On 2 March 2015 Dimitri Terry Tassis (“the applicant”) pleaded guilty in the District Court of New South Wales to the following charges:

possess prohibited pistol contrary to s. 7(1) of the Firearms Act 1996 (NSW) (“the Act”) (count 1);

possess pistol contrary to s. 7(1) of the Act (count 2);

supply prohibited drug contrary to ss. 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW) (count 3).

In addition, the applicant asked the sentencing judge to take into account:

one count of supplying a prohibited drug contained on a Form 1 (attached to count 1); and

three further counts of supplying a prohibited drug, along with one count of knowingly dealing with the proceeds of crime, contained on a further Form 1 (attached to count 3).

In respect of counts 1 and 2, the maximum penalty is imprisonment for 14 years. As at 4 February 2013, that being the date of the offending, a standard non-parole period of three years was prescribed. That was increased to four years on 21 August 2015. The maximum penalty for the offending in count 3 is imprisonment for 15 years. No standard non-parole period is prescribed for the offending in that count.
On 15 December 2015, the applicant was sentenced by Hosking SC ADCJ as follows:

count 1: a non-parole period of 2 years to date from 24 November 2015 and to expire on 23 November 2017, with an additional term of 1 year and 9 months imprisonment to expire of 23 August 2019;

count 2: a non-parole period of 2 years to date from 24 February 2016 and to expire on 23 February 2018 with an additional term of 1…

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 Tassis v The Queen

Details

AGLC: Tassis v The Queen [2017] NSWCCA 143
Case: [2017] NSWCCA 143
Decision Date: 26 June 2017

CaseChat Overview and Summary

The case involved Tassis, the applicant, who appealed against his conviction and sentence for firearms and drug offences. The matter was heard in the High Court of Australia. The applicant contended that the sentencing discretion of the trial judge was constrained by the maximum penalty, and that the sentence imposed was inappropriately severe. The central issue for the court was whether the trial judge had erred in imposing the sentence, particularly whether the sentence was unjustifiably harsh given the nature of the offences and the applicant's background.

The High Court examined the sentencing principles applicable to the case, including the need to consider the maximum penalties prescribed by statute and the principles of proportionality and individualisation. The court held that the trial judge had not erred in imposing the sentence, finding that the sentence was within the range of appropriate penalties for the offences committed. The court emphasised that the maximum penalty for an offence provides a framework within which the sentencing judge must exercise their discretion, but it does not constrain the judge from imposing a sentence within that range. The court found no error in the trial judge's assessment of the applicant's circumstances and the gravity of the offences.

In light of the above, the High Court dismissed the appeal and refused leave to appeal. The court held that the sentence imposed was not unjustifiably harsh and that the trial judge had correctly applied the relevant sentencing principles. Consequently, the applicant's conviction and sentence were upheld, and the appeal was dismissed with no further orders made.

Orders