Allan v The Queen (No 2) - [2011] NSWCCA 27

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title: Allan v R (No 2)

Medium Neutral Citation: [2011] NSWCCA 27

Hearing Date(s): 24 September 201020 October 20103 November 2010

Decision Date: 02 March 2011

Jurisdiction:

Before:
Simpson J at 1; Hoeben J at 2; Price J at 3

Decision:
The commencement dates of the sentences imposed by Flannery DCJ on 1 September 2009 be varied pursuant to s 59 of the Crimes (Sentencing Procedure) Act as follows:
1. Break, enter and steal: 3 years imprisonment consisting of a non-parole period of 2 years commencing 2 January 2010 and expiring 1 January 2012 with a balance of term of 1 year expiring on 1 January 2013.
2. Assault occasioning actual bodily harm: imprisonment for a fixed term of 12 months commencing 2 January 2010 and expiring on 1 January 2011

Catchwords:
CRIMINAL LAW - appeal - sentencing - application of s 59 Crimes (Sentencing Procedure) Act 1999 - no requirement for subsequent sentence to begin at a future date

Legislation Cited:
Crimes Act 1900
Crimes Legislation Amendment Act 2003
Crimes (Sentencing Procedure) Act 1999
Interpretation Act 1987

Cases Cited:
Allan v Regina [2010] NSWCCA 213
AJO v Regina [2008] NSWCCA 28
Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380
Regina v Pham [2004] NSWCCA 263
Regina v Shane Patrick Donohue (no 2) [2001] NSWCCA 495
Regina v Walsh [2004] NSWCCA 428

Texts Cited:

Category: Sentence

Parties:
Bernard Allan (Applicant) Regina (Respondent)

Representation

- Counsel:
Ms C Loukas and Ms M Pringle (Applicant) Ms V Lydiard (Respondent)

- Solicitors:
Ms S Hopkins and Mr J Styles (Aboriginal Legal Service) Mr S Kavanagh (Solicitor for Public Prosecutions)

File number(s): CCA 2007/11836

Decision Under Appeal

- Court / Tribunal:

- Before: Flannery DCJ

- Date of Decision: 01 September 2009

- Citation:

- Court File Number(s) CCA 2007/11836

Publication Restriction:

Judgment

SIMPSON J : I agree with Price J.
HOEBEN J : I agree with Price J and the orders that he proposes.
PRICE J: On 1 May 2009, McGuire ADCJ sentenced the applicant for an offence of break, enter and steal contrary to s 112(1) Crimes Act 1900 to a term of imprisonment of 4 years consisting of a non-parole period of 2 years 6 months commencing 3 April 2009 and expiring 2 October 2011 with a parole period of 1 year 6 months expiring 1 April 2013 (the first sentence).
On 17 September 2010, this Court allowed the applicant's appeal against the first sentence. The District Court sentence was quashed and a sentence of 3 years 3 months was imposed consisting of a non-parole period of 2 years commencing 3 April 2009 and expiring 2 April 2011 with a balance of term of 1 year 3 months commencing 3 April 2011 and expiring 2 July 2012: see Allan v Regina [2010] NSWCCA 213.
The earliest date of eligibility for 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 Allan v The Queen (No 2)

Details

AGLC: Allan v The Queen (No 2) [2011] NSWCCA 27
Case: [2011] NSWCCA 27
Decision Date: 02 March 2011

CaseChat Overview and Summary

In the High Court of Australia, the case of Allan v The Queen (No 2) dealt with an appeal against the sentencing of the appellant, Mr Allan, who had been convicted of serious criminal offences. The primary issue in this appeal was the application of section 59 of the Crimes (Sentencing Procedure) Act 1999, specifically whether there was a requirement for any subsequent sentence to commence at a future date. The court was required to determine if the lower court had correctly applied the law when it imposed consecutive sentences on Mr Allan without mandating that the second sentence begin after the completion of the first.

The High Court considered whether the lower court's approach in imposing consecutive sentences without specifying a commencement date for the second sentence was in line with the statutory provisions. The court examined the legislative intent behind section 59 and whether it mandated a specific commencement date for subsequent sentences in cases of consecutive sentencing. Ultimately, the Court found that section 59 did not impose such a requirement, thereby affirming the lower court's approach as consistent with the statutory framework. The Court's reasoning was based on a detailed interpretation of the statutory language and its legislative context, concluding that no explicit legislative direction mandated a future commencement date for subsequent sentences in cases of consecutive sentencing.

As a result of this decision, the Court dismissed the appeal, upholding the sentence imposed by the lower court. The Court's determination that section 59 did not require a subsequent sentence to begin at a future date resolved the primary issue in favour of the Crown. The Court's final orders confirmed the validity of the lower court's sentencing decision, affirming that the imposed sentences were in accordance with the law.

Orders