High Court of Australia
High Court of Australia Mason C.J. Brennan, Deane, Toohey and Gaudron JJ. Dimozantos v The Queen (No 2) [1993] HCA 52
ORDER Appeal allowed. Set aside the sentence imposed by the Court of Criminal Appeal of Victoria. In lieu thereof order that the appellant be sentenced to imprisonment for a term of eight years with a minimum term of six years and two months before he is eligible for parole. * Note: By reason of s. 117(4) of the Sentencing Act 1991, the provisions of the Penalties and Sentences Act 1985 apply to the sentence now imposed by the Court.
Cur. adv. vult.
The Court delivered the following written judgment:—
Sept. 22 Mason C.J., Brennan, Deane, Toohey and Gaudron JJ.
On 26 July 1991, the appellant was convicted, by a jury in the Supreme Court of Victoria, of the offence of incitement to murder. The learned trial judge (Marks J.) sentenced him to be imprisoned for twelve years and directed that he serve a minimum term of ten years before becoming eligible for parole. On 7 October 1991, applications by the appellant for leave to appeal against conviction and sentence were refused by the Court of Criminal Appeal of Victoria. The appellant obtained special leave to appeal to this Court from the Court of Criminal Appeal's refusal of the application for leave to appeal against sentence. On 7 October 1992, the appeal against sentence was unanimously allowed by this Court (Mason C.J., Brennan, Dawson, Gaudron and McHugh JJ.) on the ground that both the learned sentencing judge and the members of the Court of Criminal Appeal had acted on the basis of a mistaken view of the maximum penalty for the offence of incitement to murder [1] . It was ordered that, in lieu of the Court of Criminal Appeal's order dismissing the appellant's application for leave to appeal against sentence, the appellant be granted leave to appeal to that court against sentence, that the appeal be allowed, that the sentence be quashed and that the appellant be remanded in custody to be sentenced according to law.
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