Dimozantos v The Queen [1992] HCA 49

High Court of Australia Mason C.J. Brennan, Dawson, Gaudron and McHugh JJ. Dimozantos v The Queen [1992] HCA 49

ORDER Appeal allowed. Set aside the order of the Court of Criminal Appeal of Victoria dismissing the appellant's application for leave to appeal against sentence. In lieu thereof, order that the appellant be granted leave to appeal against sentence, the appeal be allowed, the sentence be quashed and the appellant be remanded in custody to be sentenced according to law.

Cur. adv. vult.

The Court delivered the following written judgment:—

Oct. 7 Mason C.J., Brennan, Dawson, Gaudron and McHugh JJ.

The appellant was convicted of incitement to murder and sentenced to imprisonment for twelve years with a direction that he serve a minimum of ten years before becoming eligible for parole. Section 321L of the Crimes Act 1958 Vict, inserted by the Crimes (Conspiracy and Incitement) Act 1984 Vict, abolished the common law crime of incitement. In its place, s. 321G created a statutory offence of incitement. Section 321I(1) prescribed the penalty for the statutory offence in the following terms:

Where a person is convicted under section 321G of incitement to commit an offence or offences against a law or laws in force in Victoria —

(a) if the penalty for the relevant offence is fixed by law, the person shall be liable to a penalty not exceeding the penalty for the relevant offence;

(b) if the relevant offence, or any of the relevant offences, is an offence for which the penalty is imprisonment for a term the maximum length of which is not prescribed by law, the person shall be liable to imprisonment for a term of not more than fifteen years;

(c) subject to paragraphs (a), (b) and (d), if the relevant offence, or any of the relevant offences is an offence for which a maximum penalty is prescribed by law, the person shall be liable to a penalty not exceeding that maximum penalty or the accumulated maximum penalties, as the case may be; or