Regina v Mouzomenos [2005] NSWCCA 203

New South Wales Court of Criminal Appeal

CITATION: Regina v Mouzomenos [2005] NSWCCA 203

HEARING DATE(S): 30/05/05

JUDGMENT DATE: 17 June 2005

JUDGMENT OF: Simpson J at 1; Barr J at 2; Latham J at 3

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Appeal against severity of sentence - parity

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Pangallo (1991) 56 A Crim R 441

Crown - Respondent PARTIES: Michael Mouzomenos - Applicant

FILE NUMBER(S): CCA 2005/343

Ms J Girdham - Respondent Crown COUNSEL: Mr F Santisi - Applicant

S Kavanagh - Respondent Crown SOLICITORS: J Nicopoulos - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1128

LOWER COURT JUDICIAL OFFICER: Woods DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/343

SIMPSON J BARR J LATHAM J

17 June 2005 REGINA v MICHAEL MOUZOMENOS Judgment 1 SIMPSON J: I agree with Latham J. 2 BARR J: I agree with Latham J 3 LATHAM J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court on 6 August 2004. The applicant first pleaded guilty in the District Court to one count of break enter and steal, pursuant to s 112(1) of the Crimes Act. The offence carries a maximum penalty of fourteen years imprisonment. The applicant received a sentence of two years imprisonment to date from 6 August 2004 with a non parole period of fifteen months expiring on 5 November 2005. 4 The facts which were tendered as part of the Crown brief on sentence are as follows. At about 8:00pm on Thursday 14 March 2002, the young female victim was alone at her home address in Penshurst. There was a knock at her front door and, on enquiring who was there, the applicant replied "its me". 5 The victim looked through a peep hole in the door and was unable to see any person. She then opened the door and saw the applicant in company with another male. 6 The victim immediately shut the door, after seeing the applicant and the other male, because she was fearful of her safety. There had been a previous encounter between the victim and the applicant which resulted in the victim excluding the applicant from her home. 7 Shortly thereafter, one of the two males kicked the front door open, breaking it at the frame. The applicant and the other male entered the unit. The applicant said, "where is your laptop". The applicant then went to the victim's bedroom whilst the other male stayed with the victim in the lounge room. The applicant proceeded to search the victim's bedroom and the lounge room. On a number of occasions the applicant asked for the victim's laptop. 8 The victim grabbed her mobile phone and ran from the unit on to Forest Road. She was able to flag down a passing motorist. As she was being driven by the motorist in the direction of Hurstville Police Station, the victim saw a green motor vehicle, at the side of Forest Road. At the time the applicant was standing at the rear of this vehicle placing something into it. 9 The victim also identified a co-offender by the name of Georgiadis, who was known to her, as the driver of the vehicle. At that time, the applicant was seated in the front passenger seat of the vehicle and the other male was in the rear of the vehicle. 10 The victim noted the registration number of the vehicle and reported the incident at Hurstville Police Station. On returning to her unit, she identified a quantity of property missing, namely one Sanyo brand stereo with speakers and her handbag containing a watch, personal cards and a quantity of cash. 11 On Thursday 16 March 2002, police attended the address of the co-offender, Georgiadis, and searched the green motor vehicle, registered to the co-offender's father. The victim's handbag was found in the rear of that vehicle. 12 The applicant was arrested on Friday 15 March 2002 and taken to Hurstville Police Station, where he participated in a record of interview. The applicant denied any knowledge of the incident and stated that he had never been to Penshurst. He also stated that he did not know the victim. He told police that he did not go out on the evening of 14 March 2002. The applicant was charged on that day with one count of aggravated break enter and steal carrying a maximum penalty of twenty years imprisonment. 13 The history of the proceedings bears considerable relevance to this appeal. The co-offender, Pantelis Georgiadis, pleaded guilty at the Local Court to aggravated break enter and steal (that is being in company with the applicant) and was sentenced by His Honour Judge Woods QC on 20 December 2002. At that time, His Honour noted that the co-offender had "made full and extensive admissions to police" the morning after his arrest. Some further reference to the remarks on sentence of his Honour on that occasion appear below in the context of ground one of the applicant's grounds of appeal. 14 The applicant pleaded guilty for the first time on 24 March 2003 at the District Court to an alternative count which was made available on indictment on that occasion. A pre-sentence report was requested and the matter was stood over to 23 May 2003. On 23 May a transcript of the sentence of Georgiadis was not available. The matter was then stood over to 10 July 2003. On that day the matter was adjourned by the applicant's legal representative in order that they might obtain a psychologist's report. The matter was next listed for 12 September 2003. 15 On 12 September the matter was again adjourned on the application of the applicant's legal representative, ostensibly on the basis that the applicant was prepared to offer assistance. The matter was stood over to 17 October 2003. 16 Between 17 October 2003 and 4 June 2004 the matter was before the District Court on no fewer than six occasions. On each of those occasions, with the exception of 4 June 2004, the applicant's legal representative sought adjournments on the basis that the foreshadowed assistance had not materialised. 17 On 4 June 2004 yet another application for an adjournment was made by the applicant's legal representative. The Court was told that the applicant had conducted an interview with police on 3 June, that is the preceding day, and that the matter was to be adjourned to allow the transcript of that interview to be taken out. 18 On 23 July 2004 His Honour was informed by the applicant's solicitor (who was present at the applicant's interview of 3 June 2004, when the applicant was given a copy of the tape recording of the interview) that the transcript of the interview was still not available, and that a further adjournment was being sought on the applicant's behalf. It was the submission of the applicant's solicitor : That the accused has given assistance to the police. Now the erisp is not before or has not been provided at this stage, although a tape of the erisp was given to the accused on the date that the erisp was taken, namely 3 June 2004. It is the defence's submission that the erisp identifies a primary offender that was involved in respect of this particular matter. 19 The Crown was in possession of a summary of the interview of 3 June. The applicant's legal representative objected to the summary of the interview being placed before the Court. It was, however, tendered in the proceedings on sentence on behalf of the applicant and became an exhibit in those proceedings. A perusal of that exhibit indicates why it was that the applicant's solicitor was reluctant for His Honour to see the document on 23 July. The summary taken out by the detective in charge of the matter contains the following comment: Nicopoulos (the applicant's solicitor) has asked about an affidavit of assistance. Based on this version I'm not prepared to give him one.