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Tsakonas v R

Tsakonas v R

Case [2009] NSWCCA 258 22 October 2009

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Reported Decision: 197 A Crim R 581

New South Wales

Court of Criminal Appeal

CITATION: Tsakonas v R [2009] NSWCCA 258

HEARING DATE(S): 2 September 2009

JUDGMENT DATE:
22 October 2009

JUDGMENT OF: Tobias JA at 1; Hoeben J at 2; RA Hulme J at 3

DECISION: Leave to appeal is granted. The appeal is dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - money laundering - attempt to conceal large proceeds of fraud - attempt to corrupt bank official - treatment of prior record of driving offences - whether sentence manifestly excessive - whether error in not finding special circumstances

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Confiscation of Proceeds of Crime Amendment Act 2005
Confiscation of Proceeds of Crime Act 1989

CATEGORY: Principal judgment

CASES CITED: Ali v R [2008] NSWCCA 60
Berg v R [2004] NSWCCA 300
Cf R v Bloomfield (1998) 44 NSWLR 734
Fahs v R [2007] NSWCCA 26
Licastro v R [2008] NSWCCA 131
Markarian v The Queen (2005) 228 CLR 357
Murphy v Regina [2005] NSWCCA 412; 158 A Crim R 375
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Oliver (1982) 7 A Crim R 174
R v Simpson (2001) 53 NSWCCA 534; (2001) 53 NSWLR 740
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Regina v Fidow [2004] NSWCCA 172
Regina v Walker [2005] NSWCCA 109
Veen v The Queen (No2) (1988) 164 CLR 465

PARTIES: Dennis TSAKONAS
Regina

FILE NUMBER(S): CCA 2008/6293

COUNSEL: S Odgers SC (Applicant)
P Leask ( Respondent)

SOLICITORS: Peter Katsoolis Lawyers
Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0374

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

LOWER COURT DATE OF DECISION: 15 August 2008

2008/6293

TOBIAS JA
HOEBEN J
R A HULME J
22 October 2009

Dennis TSAKONAS v Regina

Judgment

1 TOBIAS JA: I agree with R A Hulme J.

2 HOEBEN J: I agree with R A Hulme J.

3 R A HULME J: The applicant was sentenced for two offences in the District Court on the 15 August 2008 to which he had pleaded guilty. His Honour Judge Armitage imposed a sentence of 2 years with a non-parole period of 18 months for an offence of making a false statement with intent to obtain a financial advantage (s 178BB(1) Crimes Act 1900 - maximum penalty imprisonment for 5 years) and a sentence of 6 years with a non-parole period of 4 years 6 months for an offence of dealing with the proceeds of crime (s 193B(1) Crimes Act - maximum penalty imprisonment for 20 years). He ordered that both sentences commence on 30 November 2007.

4 The judge took into account, at the applicant’s request, offences of possessing a prohibited drug and goods in custody in sentencing for the second of those offences.

Facts

5 An agreed statement of facts prepared by a DPP solicitor was tendered to the judge. It leaves a number of questions unanswered. The judge…

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 Tsakonas v R

Details

AGLC: Tsakonas v R [2009] NSWCCA 258
Case: [2009] NSWCCA 258
Decision Date: 22 October 2009

CaseChat Overview and Summary

Tsakonas v R was a case heard by the High Court of Australia, where the appellant, Tsakonas, appealed against his conviction for various charges related to money laundering and corruption. The appellant was found guilty of attempting to conceal large proceeds of fraud, attempting to corrupt a bank official, and other related offences. The central issue before the court was the appropriateness of the sentence imposed on the appellant and whether there were any errors in the trial judge's consideration of his prior criminal record and the absence of special circumstances in the sentencing process.

The legal issues that the court needed to address included whether the sentence was manifestly excessive, the appropriate weight to be given to the appellant's prior record of driving offences, and whether the trial judge erred in not finding special circumstances that could have potentially mitigated the sentence. The court examined the principles of sentencing in criminal cases, particularly the need for a balance between deterrence, retribution, and rehabilitation, as well as the relevance of prior convictions in determining an appropriate sentence.

The High Court held that the sentence was not manifestly excessive, taking into account the seriousness of the offences and the need for general deterrence. The court emphasised that while prior convictions could be relevant, they should not be determinative in the sentencing process. The court further found that there was no error in the trial judge's failure to identify special circumstances that could have led to a lesser sentence, as the appellant had not provided sufficient evidence to support such a finding. Consequently, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court beyond the dismissal of the appeal and the upholding of the original sentence.

Orders