REGINA v STAVROPOULOS [2008] NSWCCA 68

New South Wales Court of Criminal Appeal

CITATION: REGINA v STAVROPOULOS [2008] NSWCCA 68

HEARING DATE(S): Monday 19 November 2007

JUDGMENT DATE: 1 April 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 2; Price J at 27

DECISION: Application for costs by the respondent dismissed.

CATCHWORDS: COSTS – failed appeal – whether s.17 of the Criminal Appeal Act applies to preclude an order for costs - CRIMINAL APPEAL – appeal by Crown against reduced sentence – whether an incompetent appeal or abuse of process

LEGISLATION CITED: Criminal Appeal Act 1912 Crimes (Sentencing Procedure) Act 1999

CASES CITED : Markisic v Vizza [2002] NSWCCA 53

PARTIES: REGINA v Paul STAVROPOULOS

FILE NUMBER(S): CCA 2007/3210

COUNSEL: Crown: GIO Rowling Resp: A Bellanto QC/J Ghabrial

SOLICITORS: Crown: S Kavanagh Resp: Shephard & Shephard

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 15/11/1131

LOWER COURT JUDICIAL OFFICER: Taylor DCJ

LOWER COURT DATE OF DECISION: 28 July 2006

IN THE COURT OF CRIMINAL APPEAL 2007/3210

McCLELLAN CJ at CL HALL J PRICE J

TUESDAY 1 APRIL 2008 REGINA v CRISTOS STAVROPOULOS Judgment (O n application for costs )

1 McCLELLAN CJ at CL: I agree with Hall J. 2 HALL J: On 7 December 2007, judgment was given by this Court in favour of the respondent to the appeal by the Crown brought pursuant to the provisions of s.5DA of the Criminal Appeal Act 1912 (NSW). 3 The appeal related to sentences imposed on the respondent in the District Court of New South Wales on 28 July 2006. 4 On the appeal, the Crown had contended that the respondent had given an undertaking to give evidence in accordance with a statement that had been provided by him and that, inter alia, on the basis of such an undertaking he was sentenced to a non-parole period of 10 months commencing 28 July 2006 and expiring 27 May 2007 with a further term of imprisonment of one year and two months commencing 28 May 2007 and expiring 27 July 2008. An order was made pursuant to s.12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the sentence be suspended and that the respondent be released from custody on condition that he enter into a good behaviour bond for the term of two years. 5 The argument on the appeal was that the respondent failed to fulfil the claimed undertaking said to have been given by him to give evidence against his two co-offenders and that, accordingly, the Court ought exercise its power to vary the sentences imposed upon him pursuant to the provisions of s.5DA(2) of the Criminal Appeal Act. 6 In the judgment given by this Court on 7 December 2007, following a review of the evidence, concluded that the appeal must fail on the basis that the evidence did not establish that the respondent had bound himself, by way of a promise or undertaking, which was an essential matter in an application under s.5DA (judgment at [62]). 7 The respondent was granted leave at the hearing to file written submissions in relation to a foreshadowed application for costs, should the Crown appeal fail.