Makrynikos v Regina [2006] NSWCCA 170

Makrynikos v Regina [2006] NSWCCA 170

The conviction appeal failed because, read fairly as a whole, the trial judge's written and oral directions adequately conveyed the Abusafiah test for duress, correctly explained the Crown's burden, and did not misdirect the jury on the appellant's evidence, lies, distress or good character. The sentence appeal...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
30 May 2006
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence From the District Court
Outcome
Appeal as to conviction dismissed; leave to appeal on sentence granted; appeal on sentence upheld; sentence quashed and substituted with a sentence of 7 years imprisonment with a non-parole period of 4 years and 6 months.
Legal Topics
['duress' 'jury Directions' 'accessory Before the Fact' 'break Enter and Steal' 'lies and Consciousness of Guilt' 'good Character Evidence' 'aggravating Factors in Sentencing']
['criminal Law' 'criminal Procedure' 'sentencing'] ['duress' 'jury Directions' 'accessory Before the Fact' 'break Enter and Steal' 'lies and Consciousness of Guilt' 'good Character Evidence' 'aggravating Factors in Sentencing']

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Application for Leave to Appeal Against Sentence From the District Court

Legal Issues

  1. 1 ["Whether the trial judge's directions on duress wrongly applied a purely objective test or misstated the onus of proof." "Whether the trial judge erred in directing the jury on scrutiny of the appellant's evidence." "Whether the directions on the appellant's lies were inadequate where the Crown relied on them as evidence of consciousness of guilt." "Whether the directions on the appellant's distress and good character were erroneous." 'Whether the sentencing judge erred in rejecting duress as relevant to sentence and in applying aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999.' 'Whether the sentence imposed was excessive and a lesser sentence was warranted.']

Ratio Decidendi

The conviction appeal failed because, read fairly as a whole, the trial judge's written and oral directions adequately conveyed the Abusafiah test for duress, correctly explained the Crown's burden, and did not misdirect the jury on the appellant's evidence, lies, distress or good character. The sentence appeal succeeded because the sentencing judge wrongly treated the principal crime as a violent offence involving violence to the person and imposed a sentence which gave an excessive starting point having regard to the applicant's lesser criminality than the principal offender, favourable personal factors, the breadth of s 112(1), and the sentencing pattern referred to by the sentencing...

Court Disposition

Appeal as to conviction dismissed; leave to appeal on sentence granted; appeal on sentence upheld; sentence quashed and substituted with a sentence of 7 years imprisonment with a non-parole period of 4 years and 6 months.

Orders

  • ['Appeal as to conviction dismissed.' 'Leave to appeal on sentence granted.' 'Appeal on sentence upheld.' 'Sentence quashed. In lieu thereof the appellant is sentenced to imprisonment for 7 years commencing on 3 September 2004 and expiring on 2 September 2011 with a non-parole period of 4 years and 6 months...