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R v Pandelis

 

[1998] QCA 245

COURT OF APPEAL

 

DEMACK J

HELMAN J

CHESTERMAN J

CA No 115 of 1998

THE QUEEN

 

v.

 

PANDELIS, Simeon

Applicant

BRISBANE

 

DATE 19/06/98

 

JUDGMENT

 

CHESTERMAN J:  The applicant pleaded guilty on 25 March 1998 to a charge that on 10 September 1996 at Brisbane he conspired together with Christopher Hansford, Raymond Holmes and Brian Storey to kill one John Hannay.

He was sentenced to six years imprisonment with a recommendation that he be released on parole after serving two and a half years.

The applicant seeks leave to appeal on the grounds that insufficient consideration was given to his plea of guilty and that there was a disparity between the sentence imposed on him and those imposed on his co-conspirators. The second point was given more emphasis in oral argument.

The conspiracy involved, as well as those I have named, one Carriage. Its object was to murder John Hannay, the owner of two nightclubs in Brisbane. One of the conspirators claimed that he was owed money by Hannay and sought the aid of the others to threaten Hannay in order to induce him to pay.

The object of the conspiracy changed when the applicant suspected that Hannay had attempted to seduce another conspirator with whom the applicant was conducting a homosexual relationship.

According to the sentencing judge, the facts constituting the conspiracy showed an elaborate, premeditated and detailed plan which was intended to lead to the death of Hannay.

The means by which the conspirators planned to kill Hannay changed in detail and, according to the applicant's submission, may never have eventuated in a murder. The conspiracy cannot be regarded as fanciful. It was prevented from having a tragic end by the interception of the conspirators. When apprehended, the applicant and three other conspirators were in a car in which police found a sawn-off rifle, two concrete blocks and a set of chains.

The purpose to which the rifle was to be put is obvious. The blocks and chains were to be used to weight the victim's body which was to be thrown into the Brisbane River.

The sentencing judge rightly treated the matter as one of great seriousness. The sentence imposed, six years imprisonment, cannot for a moment be regarded as excessive. We have been provided examples of sentences imposed for broadly similar offences in this State, in Victoria and in Western Australia. Penalties have ranged from six years to eight years imprisonment.

The particular complaints made by the applicant are that his plea of guilty did not attract a sufficient discount and that he has been punished more severely than his co-conspirators.

I do not think there is any substance in the first point.

The applicant did not plead guilty until the morning of the day his trial was to commence. It was not an early plea.

It was, nevertheless, taken into account by the learned judge who said:

"What can be said in your favour is that you have pleaded guilty today on the day of the trial. It is not an early plea but it, nevertheless, is a plea and has saved the community a considerable expense. Statements of your co-accused were only received by your lawyers late last week and that is some explanation for the lateness of the plea ... You should receive an earlier recommendation for parole than otherwise and a slightly lesser head sentence than otherwise because of your plea of guilty."

I regard a term of imprisonment of six years as being at the lower end of the appropriate range. In my view a sufficient discount for the plea of guilty was awarded.

Nor do I think that there is any more substance in the second point. The applicant submits that the practical effect of the sentences imposed on him and his co-conspirators should be looked at. He refers us to the parity principle, as it is called, which I understand to be that equal justice requires that as between co-offenders there should not be a marked disparity which gives rise to a justifiable sense of grievance between punished criminals.

The passage to which we were referred in Q v. Postiglione (1997) 94 A Crim R 397 at 400 has this to say, reading the joint judgment of Dawson and Gaudron JJ:

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of

co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated."

The other three conspirators who have been punished all received a sentence of five years imprisonment wholly suspended. They were very significant differences between each of the others and the applicant.

The applicant had a substantial criminal history. Of particular relevance is a conviction on 13 December 1984 for armed robbery. He was sentenced to two years imprisonment with a recommendation that he be considered for parole after serving nine months.

On 6 September 1985 he was convicted of unlawfully wounding with intent to do grievous bodily harm. His initial sentence of four years imprisonment was increased on appeal to ten years.

Two of the other conspirators, Hansford and Holmes, had no previous criminal record. The third, Carriage, had been convicted of relatively trivial offences on two previous occasions.

It was Carriage, though, who frustrated the conspiracy by revealing the danger to Hannay's life, firstly to him and then to the police. He co-operated with the authorities and may well have been instrumental in saving Hannay from death.

All of the other offenders were much younger than the applicant. He was just short of forty years of age when the offence was committed. Carriage was twenty-six at the time, Holmes was only twenty-three, and Hansford twenty-two. Each of the others pleaded guilty much earlier than the applicant. Moreover, the applicant was the instigator and the prime mover of the conspiracy. It was he who recruited Carriage to the conspiracy in order to obtain the rifle intended to kill the victim. It was the applicant who proposed initially that Hannay be killed rather than coerced into paying Storey the money allegedly due.

The trial judge expressly considered each of these factors before concluding:

"For these reasons, it is my view that a proper distinction can be drawn between you and the co-accused who have been dealt with to date and that you therefore must be sentenced to a substantially greater penalty."

As I have understood the argument advanced by counsel for the applicant, this point is not in contest. What is sought is a reduction in the period after which it is recommended that the applicant be eligible for parole. The sentencing judge thought that two and a half years was appropriate. The applicant seeks, instead, a period of about eighteen months.

In my opinion this Court is not justified in interfering to such an extent with the sentence imposed. It cannot be said that the discretion of the sentencing judge miscarried in any way in recommending that the applicant be released on parole after serving two and a half years. In my view, the sentence imposed was at the low end of the range and does not justify any complaint. The factors identified by the learned judge more than adequately explain the disparity between the applicant's sentence and those of his co-conspirators.

In my opinion the application should be refused.

DEMACK J:  I agree.

HELMAN:  I agree.

DEMACK J:  The order of the Court is the application is refused.

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Editorial Notes

  • Published Case Name:

    R v Pandelis

  • Shortened Case Name:

    R v Pandelis

  • MNC:

    [1998] QCA 245

  • Court:

    QCA

  • Judge(s):

    Demack J, Helman J, Chesterman J

  • Date:

    19 Jun 1998

Litigation History

No Litigation History

Appeal Status

No Status