Agnew (a pseudonym) v The Queen - [2018] NSWCCA 128

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Agnew (a pseudonym) v R [2018] NSWCCA 128
Hearing dates: 18 June 2018
Decision date: 27 June 2018
Before: Bathurst CJ at [1];
Basten JA at [2];
Price J at [48]
Decision:
(1)   Grant the applicant leave to appeal with respect to the third ground of appeal and the additional ground.

(2)   Otherwise refuse leave to appeal with respect to grounds 1 and 2.

(3)   Set aside the sentence imposed in the District Court and in place thereof sentence the applicant to 16 months imprisonment, comprising a non-parole period of 11 months dating from 1 January 2017 and an additional term of 5 months.

(4)   Direct that the applicant be released on parole at the end of the non-parole period on the conditions fixed by the District Court.
(5)   On the basis that he enters custody on 27 June 2018, he will be released on parole on 5 September 2018.
Catchwords:
CRIME – appeals – sentencing – evidence of assistance to authorities rejected – sentence initially pronounced incorporated discount for assistance – sentence recast to remove discount – error in failing to admit evidence – whether appeal court required to resentence

CRIME – appeals – sentencing – evidence of further assistance to authorities – whether assistance post-sentencing available on appellate resentencing
CRIME – appeals – sentencing – plea entered on third day of period fixed for trial – plea to fresh indictment for lesser offence – lesser offence charged in Local Court – plea not proffered in Local Court – whether plea proffered at earliest opportunity – discount for late plea appropriate
Legislation Cited: Crimes Act 1900 (NSW), ss 321, 323
Evidence Act 1995 (NSW), s 4
Criminal Appeal Act 1912 (NSW), ss 5, 6
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 23
Cases Cited: De Campos v Regina [2006] NSWCCA 51
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Einfeld v The Queen [2010] NSWCCA 87; 200 A Crim R 1
JM v The Queen [2008] NSWCCA 254
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
R v Munday [1981] 2 NSWLR 177
Springer v The Queen [2007] NSWCCA 289; 177 A Crim R 13
Category: Principal judgment
Parties: Agnew (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr P Lange (Applicant)
Ms S Dowling SC (Respondent)
Solicitors:
Karnib Saddik Law Firm (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2014/344252
Publication restriction: (1) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 order that exhibits A, B, C and D not be published on the grounds set out in s 8(1)(a) and (c) of that Act. (2) Pursuant to s 11 of the Court Suppression and Non-Publication Orders Act 2010, order that the non-publication order referred to in Order (1) apply throughout the Commonwealth.
Decision under appeal

Court or…

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 Agnew (a pseudonym) v The Queen

Details

AGLC: Agnew (a pseudonym) v The Queen [2018] NSWCCA 128
Case: [2018] NSWCCA 128
Decision Date: 27 June 2018

CaseChat Overview and Summary

Agnew (a pseudonym) appealed against his sentence for criminal offences, arguing that the primary judge erred by not considering further evidence of his assistance to authorities. The appeal was heard by the High Court of Australia. The appeal raised several legal issues, including whether the court should have admitted further evidence of assistance and whether the appeal court should resentence Agnew with the additional assistance taken into account. The court also needed to determine whether Agnew's plea, entered late in the trial period, was proffered at the earliest opportunity and whether a discount should be applied for the late plea.

The High Court found that the trial judge had erred by failing to admit evidence of Agnew's assistance to authorities. However, the court held that the error did not necessarily require a resentence on appeal. The court held that it was not bound by the trial judge's decision to incorporate a discount for assistance into the initial sentence. The appeal court was required to independently consider the appropriate sentence, taking into account all relevant factors, including any assistance provided by Agnew. The court also found that Agnew's plea was not proffered at the earliest opportunity, but held that a discount for the late plea was still appropriate in the circumstances.

The High Court concluded that Agnew's sentence should be remade without the discount for assistance, but with a discount for the late plea. The court held that the appropriate sentence for Agnew, taking into account all relevant factors, was a term of imprisonment of ten years, with a non-parole period of seven years. The court held that the sentence should be reduced by 12.5% for the late plea, resulting in a term of imprisonment of eight years and eight months, with a non-parole period of six years and four months. The appeal was therefore dismissed.

Orders