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Avery v R

Avery v R

Case [2015] NSWCCA 50 2 April 2015

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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 instance
Legislation 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 44
Category: Principal judgment
Parties: Daniel Avery - Applicant
Representation:
Counsel:
Mr R Wilson - Applicant
Ms N Williams - Respondent
Solicitors:

File Number(s): 2012/273988
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Before:

Wells DCJ

Judgment

R A HULME J: I agree with Bellew J.
DAVIES J: I agree with Bellew J.
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).

The maximum penalty for each of counts 1 and 3 is imprisonment for 20 years. A standard non-parole period of 5 years…

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 Avery v R

Details

AGLC: Avery v R [2015] NSWCCA 50
Case: [2015] NSWCCA 50
Decision Date: 02 April 2015

CaseChat Overview and Summary

The applicant, Avery, appealed against his sentence for two counts of aggravated break and enter and for being carried in a conveyance taken without consent. The applicant's appeal was heard in the High Court of Australia. The key issues before the Court were whether the sentencing judge had made erroneous factual findings regarding the applicant's participation in the joint criminal enterprise, failed to consider evidence of the applicant's intoxication, failed to give proper effect to the finding of special circumstances, and whether the discount for assistance applied was appropriate. Additionally, the Court considered whether the sentence was manifestly excessive. The Court also examined whether the applicant was bound by the conduct of the case at first instance because the submissions in support of the grounds of appeal were not put to the sentencing judge.

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