Vossos v The Queen - [2016] NSWCCA 262

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Vossos v R [2016] NSWCCA 262
Hearing dates: 2 November 2016
Date of orders: 25 November 2016
Decision date: 25 November 2016
Before: Macfarlan JA at [1]
R A Hulme J at [2]
Bellew J at [3]
Decision:
Leave to appeal is refused

Catchwords:
CRIMINAL LAW – Application for leave to appeal against sentence – Whether sentencing judge erred in failing to have regard to evidence of the applicant’s limited intellectual capacity and impaired cognitive functioning – Where there was no evidence of any nexus between those matters and the offending – Ground of appeal not made out – Leave to appeal refused
CRIMINAL LAW – Application for leave to appeal against sentence – Where matters sought to be relied upon were not put to the sentencing judge – Application for leave to appeal against sentence not the occasion for the revision and reformulation of the case presented at first instance
Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Aslan v R [2014] NSWCCA 114
Elturk v R [2014] NSWCCA 61
McLaren v R [2012] NSWCCA 284
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 Ngati v R [2014] NSWCCA 125
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Principal judgment
Parties: Nicholas Vossos – Applicant
Regina – Respondent
Representation:
Counsel:
S Pararajasingham – Applicant
M Cinque SC – Respondent
Solicitors:
The Law Practice – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s): 2012/2319880
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Date of Decision:

18 September 2015

Before:

Colefax SC DCJ

Judgment

MACFARLAN JA: I agree with Bellew J
R A HULME J: I agree with Bellew J.
BELLEW J: Nicholas Vossos (“the applicant”) pleaded guilty before the District Court to two counts of supplying a prohibited drug, contrary to s. 21(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The applicant asked the sentencing judge to take into account two further offences on a Form 1, namely:

participating in a criminal group; and

assaulting a police officer in the execution of his duty.

On 18 September 2015 the applicant was sentenced by His Honour Judge Colefax SC to an aggregate sentence of 5 years imprisonment, with a non-parole period of 3 years and 9 months. The applicant now seeks leave to appeal against that sentence.

THE FACTS

The sentencing judge found the facts to be as follows (commencing at ROS 2):
In March 2012, New South Wales Police attached to the Middle Eastern Organised Crime Squad started investigating the street level distribution of heroin by a drug syndicate operating in the south-west suburbs of Sydney.
The main members of that syndicate were Mr Mark Younes, his brother Carlos Younes, Mr Vossos and Ms Melissa Pleasance (whom I sentenced on 24 October 2014). There were other people also involved.
The group operated out of a granny flat connected…

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 Vossos v The Queen

Details

AGLC: Vossos v The Queen [2016] NSWCCA 262
Case: [2016] NSWCCA 262
Decision Date: 25 November 2016

CaseChat Overview and Summary

In the case of Vossos v The Queen, the applicant, a convicted offender, sought leave to appeal against the sentence imposed by the sentencing judge. The applicant argued that the sentencing judge had failed to consider evidence of his limited intellectual capacity and impaired cognitive functioning, which he claimed should have influenced the sentence. The matter was heard by the court, which had to decide whether the sentencing judge had indeed erred in this respect and whether the application for leave to appeal should be granted.

The court first considered whether the sentencing judge had erred by not taking into account the evidence of the applicant's intellectual and cognitive impairments. The court noted that the applicant had not established a nexus between these impairments and the offending behaviour. Without such a connection, the court determined that the sentencing judge was not obliged to consider these factors in determining the sentence. Consequently, the court held that the ground of appeal was not made out as the applicant had not demonstrated that the sentencing judge's failure to consider these matters resulted in an error affecting the sentence.

Furthermore, the court addressed the applicant's contention that the application for leave to appeal was an appropriate forum to rely on matters that were not presented to the sentencing judge. The court reaffirmed that an application for leave to appeal is not a vehicle for the revision or reformulation of the case presented at the first instance. As such, the applicant's attempt to introduce new evidence or arguments at this stage was not permitted. The court concluded that the application for leave to appeal was not the appropriate avenue for the applicant to raise these issues.

In light of the above, the court refused the applicant's application for leave to appeal against the sentence imposed by the sentencing judge. The court's reasoning was grounded in the lack of evidence connecting the applicant's intellectual and cognitive impairments to the offending and the inadmissibility of new arguments or evidence in an application for leave to appeal.

Orders