Gavellas v R [2022] NSWCCA 229

Gavellas v R [2022] NSWCCA 229

Ground 1 was not made out because the sentencing judge's statement that he had taken into account the submissions of counsel did not establish that he accepted or acted on the applicant's erroneous submissions that violence and commission in company were aggravating factors, where those matters were elements of the offence. Ground 2 was made out because the sentencing judge made a factual error about the number of persons, possibly children, present in the house. However, having considered the matter afresh, the Court was not of the opinion that any lesser sentence was warranted in law, given the seriousness of the armed home invasion, the violence used, the harm and distress caused, and...

Jurisdiction
Australia
Judgment Date
25 October 2022
Procedural Posture
Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Extension of time granted; ground 2 upheld; appeal dismissed.
Legal Topics
['specially Aggravated Break and Enter and Commit Serious Indictable Offence' 'assault Occasioning Actual Bodily Harm' 'form 1 Offence of Intentionally Damaging Property' 'statutory Aggravating Factors' 'double Counting' 'factual Error in Sentencing' 'extension of Time']
['criminal Law' 'sentencing' 'criminal Appeals'] ['specially Aggravated Break and Enter and Commit Serious Indictable Offence' 'assault Occasioning Actual Bodily Harm' 'form 1 Offence of Intentionally Damaging Property' 'statutory Aggravating Factors' 'double Counting' 'factual Error in Sentencing' 'extension of Time']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Extension of Time and Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether an extension of time should be granted for the applicant to file an application for leave to appeal against sentence.' 'Whether the sentencing judge erred by taking into account as statutory aggravating factors matters that were elements of the principal offence, namely that the offence involved violence and was committed in company.' 'Whether the sentencing judge made a factual error by referring to two daughters being at home when the agreed facts stated that only the eldest child was present.' 'Whether, despite established error, a lesser sentence was warranted in law.']

Ratio Decidendi

Ground 1 was not made out because the sentencing judge's statement that he had taken into account the submissions of counsel did not establish that he accepted or acted on the applicant's erroneous submissions that violence and commission in company were aggravating factors, where those matters were elements of the offence. Ground 2 was made out because the sentencing judge made a factual error about the number of persons, possibly children, present in the house. However, having considered the matter afresh, the Court was not of the opinion that any lesser sentence was warranted in law, given the seriousness of the armed home invasion, the violence used, the harm and distress caused, and...

Court Disposition

Extension of time granted; ground 2 upheld; appeal dismissed.

Orders

  • ['An extension of time in which to file an application for leave to appeal is granted until 22 August 2022.' 'Uphold ground 2.' 'Dismiss the appeal.']