A v The Queen - [2018] NSWCCA 289

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: A v R [2018] NSWCCA 289
Hearing dates: 12 October 2018
Decision date: 14 December 2018
Before: White JA at [1];
Walton J at [61];
Wilson J at [62]
Decision:
(1)   Grant the applicant leave to appeal from the sentence imposed in the District Court on 8 March 2018.

(2)   Order that the appeal be allowed and that the sentence passed in the District Court on 8 March 2018 be quashed.
(3)   In lieu thereof, order that the applicant be sentenced to a term of imprisonment of nine years with a non-parole period of five years and eight months, and a balance term of three years and four months. The non-parole period will date from 27 October 2016 and expire on 26 June 2022, and the balance term will expire on 26 October 2025. The applicant will be first eligible for parole on 27 June 2022.
Catchwords: CRIMINAL LAW – Application for leave to appeal against sentence – Robbery in company – Supply of not less than a commercial quantity of a prohibited drug – Where applicant had provided assistance to law enforcement authorities – Where primary judge stated that assistance to authorities had been exhausted in separate Local Court proceedings – Where transcript of Local Court proceedings indicated that they had not been exhausted – Where transcript was not provided to primary judge – Whether legitimate sense of grievance arising from sentence imposed upon co-offender – Application for leave to appeal granted – Appeal dismissed
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
Crimes Act 1900 (NSW), ss 97, 192E
Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 33
Cases Cited: Burrows v R [2017] NSWCCA 45
Franklin v R [2018] NSWCCA 245
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v XX [2017] NSWCCA 90; (2017) 266 A Crim R 132
Sheen v R [2014] NSWCCA 42
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
Category: Principal judgment
Parties: A (Applicant)
Regina (Respondent)
Representation:
Counsel:
G D Wendler (Applicant)
F A Veltro (Crown)
R Grady (NSW Commissioner of Police)
Solicitors:
Van Houten Law (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/2538052016/321587
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

8 March 2018

Before:

Colefax SC DCJ

File Number(s):

2015/253805
2016/321587

Judgment

WHITE JA: This is an application for leave to appeal against sentence. At the commencement of the hearing, on the application of the NSW Commissioner of Police, the Court made an order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the true identity of the applicant be suppressed until further order of the Court together with any evidence, submission, discussion, document or information that might facilitate identification of the true identity of the applicant. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A v The Queen

Details

AGLC: A v The Queen [2018] NSWCCA 289
Case: [2018] NSWCCA 289
Decision Date: 14 December 2018

CaseChat Overview and Summary

The case of A v The Queen involved an application for leave to appeal against a sentence imposed for robbery committed in company and the supply of a commercial quantity of a prohibited drug. The applicant sought to challenge the sentence through an appeal process, arguing that certain factors, including their cooperation with law enforcement authorities, had not been properly considered by the primary judge. The application was heard by the High Court of Australia.

The legal issues before the court encompassed the procedural fairness of the primary judge's consideration of the applicant's cooperation with authorities and the impact of that cooperation on the sentence imposed. Additionally, the court had to determine whether the applicant had a legitimate grievance concerning the sentence imposed on a co-offender, which might have influenced the sentence handed down to the applicant. The court's task was to evaluate the merits of the application for leave to appeal, considering the procedural and substantive fairness of the primary judge's decision-making process.

In examining the application, the court noted that the primary judge had been provided with incomplete information regarding the extent of the applicant's cooperation with authorities. Specifically, the primary judge had been informed that the applicant's assistance to authorities had been exhausted in separate Local Court proceedings, despite the transcript of those proceedings indicating otherwise. This omission was significant, as it could have affected the sentence imposed. The court held that the applicant had demonstrated a legitimate grievance concerning the sentence, which warranted the grant of leave to appeal. However, upon further review, the court found that the appeal itself did not succeed, and the original sentence was upheld.

Consequently, the application for leave to appeal was granted, but the appeal was dismissed. The High Court did not alter the sentence imposed by the primary judge, thereby affirming the original decision.

Orders