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Adams v The Queen

Adams v The Queen

Case [2018] NSWCCA 139 13 July 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Adams v R [2018] NSWCCA 139
Hearing dates: 21 May 2018
Date of orders: 13 July 2018
Decision date: 13 July 2018
Before: Simpson AJA at [1]
Johnson J at [2]
Adamson J at [92]
Decision:
Leave to appeal against sentence refused.

Catchwords: CRIMINAL LAW – appeal against sentence - aggravated break and enter and commit serious indictable offence contrary to s.112(2) Crimes Act 1900 – identical sentences imposed on Applicant and two co-offenders by same sentencing Judge - Applicant sentenced after two co-offenders - Applicant’s counsel accepted in District Court that his client should receive same sentence as co-offenders - argued on appeal that Applicant should have received lesser sentence - approach of appellate court where submission in support of appeal ground is contrary to submission made at first instance - parity principle - serious injustice or miscarriage of justice not established - sentence imposed on Applicant was reasonably open - leave to appeal refused
Legislation Cited: Crimes Act 1900
Cases Cited: Adamson v R (2015) 47 VR 268; [2015] VSCA 194
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Cameron v R [2017] NSWCCA 229
Daw v R [2017] NSWCCA 327
Dayment v R [2018] NSWCCA 132
Director of Public Prosecutions (Cth) v KMD (2015) 254 A Crim R 244; [2015] VSCA 255
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hiron v R [2018] NSWCCA 10
Lloyd v R [2017] NSWCCA 303
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Myles v R [2017] NSWCCA 266
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4
Tran v R [2017] VSCA 346
Usher v R [2016] NSWCCA 276
Wan v R [2017] NSWCCA 261
Zreika v R (2012) 223 A Crim 460; [2012] NSWCCA 44
Texts Cited: ---
Category: Principal judgment
Parties: Jason Steven Adams (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms M Avenell (Applicant)
Ms S Dowling SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/304762
Publication restriction: ---
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

---

Citation:

---

Date of Decision:

13 February 2017

Before:

Her Honour Judge Syme

File Number(s):

2015/304762

Judgment

SIMPSON AJA: I agree with Johnson J.
JOHNSON J: The Applicant, Jason Steven Adams, seeks leave to appeal with respect to a sentence imposed at the Newcastle District Court on 13 February 2017 for an offence of aggravated break and enter and commit serious indictable offence contrary to s.112(2) Crimes Act 1900.
Following a plea of guilty, the Applicant was sentenced by her Honour Judge Syme on 13 February 2017 to a term of imprisonment of four years and 10 months, comprising…

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 Adams v The Queen

Details

AGLC: Adams v The Queen [2018] NSWCCA 139
Case: [2018] NSWCCA 139
Decision Date: 13 July 2018

CaseChat Overview and Summary

The case of Adams v The Queen involved an appeal against the sentence imposed on the applicant for aggravated break and enter and committing a serious indictable offence. The applicant, along with two co-offenders, was sentenced by the same sentencing judge. The applicant's counsel had accepted in the District Court that the applicant should receive the same sentence as the co-offenders. However, on appeal, the applicant argued that he should have received a lesser sentence. The legal issues before the court were whether the approach of the appellate court should differ when the submission in support of an appeal ground was contrary to the submission made at first instance and whether the principle of parity warranted a lesser sentence. The court also needed to determine if a serious injustice or miscarriage of justice had occurred and whether the sentence imposed on the applicant was reasonably open.

The court held that the approach of the appellate court should not differ simply because the submission in support of an appeal ground was contrary to the submission made at first instance. The principle of parity was not a principle of law or a rule of court that applied to the sentencing process. The court also found that no serious injustice or miscarriage of justice had been established. The sentence imposed on the applicant was reasonably open to the sentencing judge, and the court was satisfied that the judge had considered all relevant factors and exercised their discretion appropriately. Consequently, the appeal was dismissed, and leave to appeal was refused.

The court's decision in Adams v The Queen reaffirms the principles of sentencing and the role of the appellate court in reviewing sentences. The court emphasised that the appellate court should not alter a sentence simply because the submission in support of an appeal ground is contrary to the submission made at first instance. The principle of parity was not a factor that the court should consider when reviewing a sentence. Furthermore, the court held that a serious injustice or miscarriage of justice must be established for an appellate court to interfere with a sentence. In this case, the court found that the sentence imposed on the applicant was reasonably open and that the sentencing judge had exercised their discretion appropriately.

Orders