Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Avery v R [2015] NSWCCA 50 Hearing dates: 23 March 2015 Date of orders: 02 April 2015 Decision date: 02 April 2015 Before: R A Hulme J at [1]
Davies J at [2]
Bellew J at [3]Decision: Leave to appeal granted.
Appeal dismissed.Catchwords: CRIMINAL LAW – Appeal – Applicant sentenced for two separate offences of aggravated break and enter together with an offence of being carried in conveyance taken without the owner’s consent – Whether sentencing judge made erroneous factual findings regarding the applicant’s participation in joint criminal enterprise – Whether sentencing judge erred in failing to have regard to evidence of the applicant’s intoxication – Whether sentencing judge gave proper effect to finding of special circumstances – Whether the discount for assistance which was applied by the sentencing judge was appropriate – Whether sentence manifestly excessive – Leave to appeal granted – Appeal dismissed.
CRIMINAL LAW – Appeal – Procedure – Where submissions in support of grounds of appeal were not put to the sentencing judge – Party to be bound by the conduct of the case at first instanceLegislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)Cases Cited: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Hutchinson v R [2014] NSWCCA 371
Kendall v R [2015] NSWCCA 13
LB v R [2013] NSWCCA 70
R v Cahyadi [2007] NSWCCA 1; (2007] 168 A Crim R 41
R v Ellis (1986) 6 NSWLR 603
R v Ehrlich [2012] NSWCCA 38; (2012) 219 A Crim R 415
R v Fernando (1992) 76 A Crim R 58
R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
SL v R [2015] NSWCCA 35
SZ v R [2007] NSWCCA 19; (2007) 168 A Crim R 249
Zreika v R [2012] NSWCCA 44Category: Principal judgment Parties: Daniel Avery - Applicant Representation: Counsel:
Solicitors:
Mr R Wilson - Applicant
Ms N Williams - Respondent
File Number(s): 2012/273988 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Before:
- Wells DCJ
Judgment
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R A HULME J: I agree with Bellew J.
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DAVIES J: I agree with Bellew J.
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BELLEW J: On 3 June 2013 Daniel Avery (“the applicant”) appeared before the Grafton Local Court and pleaded guilty to the following offences:
aggravated break and enter and commit a serious indictable offence: Crimes Act 1900 s. 112(2) (count 1);
allowing himself to be carried in conveyance knowing that it had been taken without the consent of the owner: Crimes Act 1900 s. 154A(1)(b) (count 2);
aggravated break and enter and commit a serious indictable offence: Crimes Act 1900 s. 112(2) (count 3).
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The maximum penalty for each of counts 1 and 3 is imprisonment for 20 years. A standard non-parole period of 5 years…
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- AGLC
- Avery v R [2015] NSWCCA 50
- Case
- [2015] NSWCCA 50
- Decision Date
CaseChat Overview and Summary
The Court found that the sentencing judge had made no erroneous factual findings regarding the applicant's participation in the joint criminal enterprise. The Court held that the sentencing judge had appropriately considered evidence of the applicant's intoxication. However, the Court found that the sentencing judge had not given proper effect to the finding of special circumstances. The Court held that the discount for assistance applied by the sentencing judge was appropriate, and the sentence was not manifestly excessive. The Court held that the applicant was bound by the conduct of the case at first instance as the submissions in support of the grounds of appeal were not put to the sentencing judge. The Court dismissed the appeal.
The Court made no orders regarding the sentence. The Court held that the appeal was dismissed on the basis that the applicant was bound by the conduct of the case at first instance and that the sentencing judge had not erred in any of the other respects argued.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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