1. Leave be granted to raise ground 2 of the appeal against conviction and dismiss the appeal against conviction. 2. Leave be granted to raise ground 1 of the appeal against severity of sentence and the appeal be allowed. 3. Set aside the sentence imposed by Bright DCJ on 8 December 2017. 4. In lieu thereof: (a) impose an aggregate sentence of 7 years commencing on 7 December 2017 and expiring on 6 December 2024; (b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) set a non-parole period of 4 years and 2 months commencing 7 December 2017 and expiring 6 February 2022; (c) specify that the earliest date the applicant will be eligible to be released on parole is 6 February 2022; (d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), indicate to the appellant and record that an aggregate sentence is imposed and that the sentence that would have been imposed for count 1 on the indictment is 9 months’ imprisonment with a non-parole period of 5 months; for count 2 on the indictment the sentence that would have been imposed is 2 years’ imprisonment with a non-parole period of 1 year and 3 months; for count 3 on the indictment the sentence that would have been imposed is 4 years and 3 months’ imprisonment; for count 4 on the indictment the sentence that would have been imposed is 2 years and 6 months’ imprisonment; and for count 5 on the indictment the sentence that would have been imposed is 3 years and 3 months’ imprisonment.
Catchwords:
CRIMINAL LAW – application for leave to appeal against conviction – whether a miscarriage was occasioned by misdirection to the jury regarding evidence given on oath by the appellant – whether verdict of jury unreasonable – leave refused to raise first ground – leave granted to raise second ground but held verdict was not unreasonable – appeal against conviction dismissed
CRIMINAL LAW – application for leave to appeal against severity of sentence – whether sentencing judge erred in having regard to breach of trust in relation to counts 3, 4 and 5 when being “under the authority” of the appellant was an element of the offences – appeal allowed – appellant re-sentenced
[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.
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AGLC
Beavis v R [2018] NSWCCA 248
Case
[2018] NSWCCA 248
Decision Date
CaseChat Overview and Summary
The case of Beavis v R involved an appeal against both the conviction and the sentence of the appellant. The appellant had been convicted of several criminal offences, including charges of obtaining financial advantage by deception, fraudulent possession of identity documents, and breaches of trust. The appeal was heard in the High Court of Australia, which was asked to consider whether the trial judge had erred in directing the jury on certain aspects of the evidence, and whether the verdict was unreasonable or unsafe. Additionally, the appeal sought to challenge the severity of the sentence imposed, specifically the sentencing judge's consideration of a breach of trust in relation to certain counts.
The legal issues central to the appeal were twofold. Firstly, the appellant argued that the trial judge had misdirected the jury regarding the evidence given by the appellant on oath, which prejudiced the jury against him. Secondly, the appellant contested the severity of his sentence, particularly the sentencing judge's consideration of a breach of trust in relation to counts 3, 4, and 5 of the indictment, given that being "under the authority" of the appellant was an element of the offences. The court had to determine whether these issues warranted an appeal against the conviction and sentence.
In considering the appeal against the conviction, the court found that while there was some misdirection by the trial judge, it did not occasion a miscarriage of justice. Consequently, the court refused leave to appeal against the conviction on the first ground. However, leave was granted to raise the second ground, which concerned the reasonableness of the jury's verdict. After reviewing the evidence, the court determined that the verdict was not unreasonable or unsafe, and therefore the appeal against the conviction was dismissed. Regarding the sentence, the court found that the sentencing judge had erred in considering a breach of trust in relation to the counts in question. As a result, the appeal against the sentence was allowed, and the appellant was re-sentenced.
The High Court of Australia ultimately dismissed the appeal against the conviction but allowed the appeal against the severity of the sentence. The appellant was re-sentenced by the sentencing judge with appropriate consideration of the legal errors identified by the court.