Gavellas v R [2022] NSWCCA 229

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gavellas v R [2022] NSWCCA 229 Hearing dates: 11 October 2022 Date of orders: 25 October 2022 Decision date: 25 October 2022 Before: Macfarlan JA at [1] Button J at [2] Wilson J at [3] Decision: 1. An extension of time in which to file an application for leave to appeal is granted until 22 August 2022; 2. Uphold ground 2; 3. Dismiss the appeal. Catchwords: CRIME – appeal against sentence – specially aggravated break enter commit serious indictable offence being assault occasioning actual bodily harm – Form 1 offence of intentionally damaging property – principal offence involved violence and was committed in company – question of whether aggravating features under s 21 Crimes (Sentencing Procedure) Act 1999 (NSW) were incorrectly held to exist – question of error of fact made by sentencing judge - factual error established – no lesser sentence warranted – appeal dismissed. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Supreme Court (Criminal Appeal) Rules 2021 Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 [No 1 of 2002] (2002) 56 NSWLR 146 House v The King (1936) 55 CLR 499; [1936] HCA 40 Johnson v R [2005] NSWCCA 186 Lay v R [2014] NSWCCA 310 R v Henry (1999) 46 NSWLR 346 Category: Principal judgment Parties: C Gavellas (Applicant) The King (Respondent) Representation: Counsel: T Bicanic (Applicant) J Roy (Respondent) (Crown)