Allan v Regina - [2010] NSWCCA 213

New South Wales
Court of Criminal Appeal

CITATION: Allan v Regina [2010] NSWCCA 213

HEARING DATE(S): 17 September 2010

JUDGMENT DATE:
17 September 2010

JUDGMENT OF: Simpson J at 1; Hoeben J at 2; Price J at 3

EX TEMPORE JUDGMENT DATE: 17 September 2010

DECISION: 1. Grant leave to appeal
2. Allow the appeal.
3. The sentence imposed in the District Court on 1 May 2009 be quashed.
4. The applicant is sentenced to imprisonment for a non-parole period of 2 years commencing on 3 April 2009 and expiring on 2 April 2011. I set a balance of term of 1 year 3 months which is to commence on 3 April 2011 and is to expire on 2 July 2012.

CATCHWORDS: CRIMINAL LAW - sentencing - where sentence imposed for an offence more serious than the charged offence - Crown concession of error - re-sentence

LEGISLATION CITED: Crimes Act 1900 s 112(1), s 112(2), s105A(1)(f), s 105A(2A)
Criminal Appeal Act 1912 s 6(3)

CATEGORY: Principal judgment

CASES CITED: Baxter v The Queen [2007] NSWCCA 237
Morrison v R [2009] NSWCCA 211
R v Harris [2007] NSWCCA 130
R v McNaughton [2006] NSWCCA 242
R v Ponfield [1999] NSWCCA 435

PARTIES: Bernard Allan
Regina

FILE NUMBER(S): CCA 2007/11836

COUNSEL: Ms C Loukas and Ms M Pringle (Applicant)
Ms V Lydiard (Repondent)

SOLICITORS: Ms S Hopkins (Aboriginal Legal Service)
Mr S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: McGuire ADCJ

LOWER COURT DATE OF DECISION: 1 May 2009

- 8 -

2007/11836

SIMPSON J
HOEBEN J
PRICE J

17 September 2010

Bernard ALLAN v Regina

Judgment

1 SIMPSON J: I agree.

2 HOEBEN J: I agree.

3 PRICE J: The applicant Bernard Patrick Allan seeks leave to appeal against the sentence imposed upon him by McGuire ADCJ on 1 May 2009 in the District Court. Before venturing into the grounds of the appeal, it is useful to recount the unusual history of these proceedings in that court.

4 The applicant had on 1 April 2009 pleaded not guilty before a jury panel to a single count on an indictment which was in the following terms:

“[He] on 5 April 2007 at Tamworth in the State of New South Wales did break and enter the dwelling house at 1 Coorong Street, and therein did steal a laptop computer and a ladies wallet and contents.”

5 This was an offence contrary to s 112(1) Crimes Act 1900, which was noted on the indictment.

6 Section 112(1) Crimes Act provides for the offence of break, enter and commit a serious indictable offence. The maximum penalty for an offence contrary to s 112(1) is 14 years imprisonment. No standard non-parole period applies.

7 Section 112(2) Crimes Act provides for a more serious offence where a person commits an offence under s 112(1) in circumstances of aggravation. The “circumstances of aggravation” which are found in s 105A(1) Crimes Act, relevantly, include:

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 Allan v Regina

Details

AGLC: Allan v Regina [2010] NSWCCA 213
Case: [2010] NSWCCA 213
Decision Date: 17 September 2010

CaseChat Overview and Summary

In the matter of Allan v Regina, the appellant was convicted of a serious criminal offence and subsequently sentenced by the court. The prosecution had charged the appellant with a crime, but the sentence imposed by the court was for a more serious offence than that charged. This discrepancy led to the appellant challenging the sentence on appeal. The case was heard and determined by the High Court of Australia.

The primary legal issue before the court was whether the sentence imposed for an offence more serious than that charged was appropriate, particularly in light of the Crown's concession that an error had occurred in the sentencing process. The court needed to determine the appropriate course of action in response to this error and whether the appellant should be re-sentenced for the offence charged or if the sentence imposed should stand.

The High Court held that the sentence imposed was indeed for a more serious offence than that charged, and this was a significant error that required correction. The court emphasised the importance of ensuring that the sentence reflects the true nature of the offence for which the appellant was convicted. Given the Crown's concession of error, the court determined that the appropriate remedy was to re-sentence the appellant for the offence charged, rather than allowing the original sentence to stand. The High Court thus ordered that the appellant be re-sentenced for the offence as initially charged, taking into account all relevant factors and ensuring the sentence was proportionate and appropriate.

In conclusion, the High Court ordered that the appellant be re-sentenced for the offence as initially charged, reflecting the true nature of the crime for which the appellant was convicted. This decision underscores the importance of accurate sentencing and the need for courts to ensure that sentences reflect the correct offence for which the individual is convicted. The court's ruling provides clarity for future cases where similar discrepancies in sentencing may arise.

Orders