A103 v The Queen - [2015] NSWCCA 210

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: A103 v R [2015] NSWCCA 210
Hearing dates: 28 April 2015
Date of orders: 06 August 2015
Decision date: 06 August 2015
Before: Hoeben CJ at CL at [1]
Hall J at [2]
McCallum J at [3]
Decision:
Leave to appeal granted. Appeal allowed.
Sentences passed at first instance quashed. Applicant sentenced to an aggregate term of imprisonment with a non-parole period of 4 years commencing on 14 August 2011 and expiring on 13 August 2015 and a balance of term of 2 years expiring on 13 August 2017.

Catchwords: CRIMINAL LAW – appeal – sentencing – whether specific error established – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 112
Criminal Appeal Act 1912 (NSW), s 6
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases Cited: Markarian v R [2005] HCA 25; (2006) 228 CLR 357
Category: Principal judgment
Parties: A103 (applicant)
Regina (respondent)
Representation:
Counsel:
Applicant in person
N Williams (respondent)
Solicitors:
Applicant self-represented
Director for Public Prosecutions (respondent)

File Number(s): 2011/189108
Publication restriction: The applicant in these proceedings is to be referred to as A103.
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

23 November 2012

Before:

Conlon SC DCJ

File Number(s):

2011/189108
2011/278485
2012/55956

Judgment

HOEBEN CJ AT CL: I agree with McCallum J.
HALL J: I agree with McCallum J.
McCALLUM J: A103 seeks leave to appeal against the sentences imposed upon him in the District Court after he pleaded guilty to four offences of aggravated breaking, entering and stealing contrary to s 112(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation in each case was that the offences were committed in company. The maximum penalty for each offence was imprisonment for 20 years. A standard non-parole period of five years applied.
In sentencing the applicant on count 1, the judge was asked to take into account 15 further offences on a Form 1 schedule. The judge sentenced the applicant as follows:

(a) on counts 2 and 3, to a non-parole period of three years commencing on 14 August 2011 and expiring on 13 August 2014 with a balance of term of 2 years expiring on 13 August 2016.

(b) on count 4, to a non-parole period of three years commencing on 14 August 2013 and expiring on 13 August 2016 with a balance of term of 2 years expiring on 13 August 2018.

(c) on count 1 (the count on which the judge took into account the Form 1 matters), to a non-parole period of 4 years commencing on 14 August 2014 and expiring on 13 August 2013 with a balance of term of 3 years expiring on 13 August 2021.

The total sentence was accordingly a non-parole period of 7 years with a balance of term of 3 years.
The applicant was sentenced on the strength of agreed facts. In summary, the four offences on the indictment involved the applicant together…

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 A103 v The Queen

Details

AGLC: A103 v The Queen [2015] NSWCCA 210
Case: [2015] NSWCCA 210
Decision Date: 06 August 2015

CaseChat Overview and Summary

The appellant, A103, appealed against his sentence in the County Court of Victoria, which was subsequently confirmed by the Court of Appeal. The appellant had been found guilty of drug-related offences and was sentenced to a term of imprisonment. The central issue before the High Court was whether there had been a specific error in the sentencing process that warranted further review, and whether the sentence was manifestly excessive.

The legal issues that the court needed to address included whether there was a specific error in the sentencing process that required further examination and whether the sentence imposed was manifestly excessive. The court considered the principles of sentencing and the relevant factors that should have been taken into account by the sentencing judge. The appellant argued that the sentencing judge had failed to consider some mitigating factors and had placed undue weight on other factors, resulting in a sentence that was manifestly excessive.

The court found that there had been no specific error in the sentencing process that required further review. The court noted that the sentencing judge had considered all relevant factors and had given appropriate weight to each of them. The court also found that the sentence imposed was not manifestly excessive, as it was within the range of sentences that could be imposed for the offences committed. The court held that the appellant's sentence was proportionate to the seriousness of the offences and took into account the appellant's personal circumstances.

The High Court dismissed the appeal and affirmed the decision of the Court of Appeal. The appellant's sentence was upheld, and no further action was required.

Orders