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 instanceLegislation 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 44Category: Principal judgment Parties: Nicholas Vossos – Applicant
Regina – RespondentRepresentation: Counsel:
Solicitors:
S Pararajasingham – Applicant
M Cinque SC – Respondent
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
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MACFARLAN JA: I agree with Bellew J
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R A HULME J: I agree with Bellew J.
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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.
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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
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The sentencing judge found the facts to be as follows (commencing at ROS 2):
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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.
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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.
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The group operated out of a granny flat connected…
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- AGLC
- Vossos v The Queen [2016] NSWCCA 262
- Case
- [2016] NSWCCA 262
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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