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Tsimingos v The Queen

Tsimingos v The Queen

Case [2021] NSWCCA 107 28 May 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Tsimingos v R [2021] NSWCCA 107
Hearing dates: 30 April 2021
Date of orders: 28 May 2021
Decision date: 28 May 2021
Before: Hoeben CJ at CL at [1]
Bellew J at [2]
N Adams J at [66]
Decision:
(1) The time for filing the notice of application for leave to appeal is extended until 17 February 2021.
(2) Leave to appeal is granted.
(3) The appeal is allowed.
(4) The sentence imposed in the District Court is quashed.
(5) In lieu thereof the applicant is sentenced to 8 years and 3 months imprisonment commencing on 20 February 2017 and expiring on 19 May 2025.
(6) Specify a non-parole period of 6 years and 2 months imprisonment commencing on 20 February 2017 and expiring on 19 April 2023.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Whether the applicant’s sentence was manifestly excessive – Serious offending – Substantial maximum penalty – Significant role played by the offender – Necessity for any sentence to reflect principles of general deterrence – Sentence not manifestly excessive
CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise – Parity principle – Whether the applicant had a justifiable sense of grievance in light of the sentence imposed upon co-offender – Where the applicant was found by the sentencing judge to have been slightly less involved than his co-offender – Where the applicant suffered significant injuries as a consequence of an explosion during the course of the offending – Where those injuries constituted extra-curial punishment – Where those injuries would render the applicant’s period in custody more onerous – Other differentiating factors between the applicant’s subjective case and that of his co-offender – Applicant found to be remorseful and to have good prospects of rehabilitation – No such findings made in the case of the co-offender – Leave to appeal granted – Appeal allowed – Applicant re-sentenced

Legislation Cited:
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:
Alameddinev R [2006] NSWCCA 317
Christodoulou v R [2008] NSWCCA 102
Gill v R [2010] NSWCCA 236
Goodbun v R [2020] NSWCCA 77
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Li v R [2021] NSWCCA 75
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
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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 Tsimingos v The Queen

Details

AGLC: Tsimingos v The Queen [2021] NSWCCA 107
Case: [2021] NSWCCA 107
Decision Date: 28 May 2021

CaseChat Overview and Summary

In the case of Tsimingos v The Queen, the applicant, Tsimingos, pleaded guilty to manufacturing a large commercial quantity of a prohibited drug as part of a joint criminal enterprise. He sought leave to appeal against the sentence imposed by the sentencing judge, arguing it was manifestly excessive. The applicant's sentence was determined to be a matter of substantial maximum penalty, given the nature and scale of the offence. The court was tasked with deciding whether the sentence was manifestly excessive, considering the significant role Tsimingos played in the offence, and the necessity for any sentence to reflect principles of general deterrence.

The court examined the principles of sentencing, particularly focusing on the necessity for any sentence to reflect principles of general deterrence and the substantial maximum penalty applicable to the offence. The court acknowledged that Tsimingos played a significant role in the joint criminal enterprise but also recognised that he suffered significant injuries during the offending, which constituted extra-curial punishment and would render his period in custody more onerous. Additionally, the court noted that Tsimingos was found to be remorseful and to have good prospects of rehabilitation, whereas no such findings were made in the case of his co-offender. The court found that these differentiating factors, coupled with the parity principle, provided a justifiable sense of grievance in light of the sentence imposed upon Tsimingos.

Ultimately, the court granted leave to appeal and allowed the appeal. It was determined that the applicant's sentence was not manifestly excessive, but the differentiating factors between Tsimingos's case and that of his co-offender warranted a re-sentencing. The applicant was re-sentenced by the court, taking into account all relevant factors.

Orders