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Black v R

Black v R

Case [2022] NSWCCA 17 11 February 2022

Criminal Liability

Sentencing

Statutory Construction

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Black v R [2022] NSWCCA 17
Hearing dates: 24 November 2021
Date of orders: 11 February 2022
Decision date: 11 February 2022
Before: Simpson AJA at [1]
Ierace J at [56]
Dhanji J at [57]
Decision:
1. Leave to appeal granted.
2. Appeal allowed, the sentence imposed in the Supreme Court quashed.
3. The applicant be resentenced to a term of imprisonment made up of a non-parole period of 3 years, 7 months and 10 days commencing on 7 July 2018, and expiring on 16 February 2022, with a balance of term of 2 years 5 days, expiring on 21 February 2024.

Catchwords:
CRIME — sentencing — manslaughter — guilty plea — discount to be applied — whether utilitarian discount under s 25E(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is available where offer to plead guilty to an offence made but initially refused by prosecutor — statutory construction — whether alternative less serious offence is a “different offence” to the subject of the proceedings — found — 25% discount applied under operation of s 25E(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Justice Legislation Amendment (Committal and Guilty Pleas) Act 2017 (NSW)

Cases Cited:
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
R v Black(No 1) [2021] NSWSC 73
R v Black (No 2) [2021] NSWSC 77
R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551
R v Holmes(No 7) [2021] NSWSC 570
R v Tailford(No 2) [2021] NSWSC 695
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Category: Principal judgment
Parties: Benjamin Black (Applicant)
The Crown
Representation:
Counsel:
M Avenell SC (Applicant)
B K Baker/K Beattie (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/143212
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2021] NSWSC 77

Date of Decision:

12 February 2021

Before:

Cavanagh J

File Number(s):

2018/143212

Judgment

SIMPSON AJA: The sole issue for determination in this application for leave to appeal against sentence is the extent of the reduction on sentence to which the applicant is entitled as a result of his plea of guilty to a charge of manslaughter. So to state the issue disguises both its complexity and its importance. Resolution of the issue ultimately turns on the proper construction of Div 1A (ss 25A-25F) of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”).
Part 3 of the Sentencing Procedure Act addresses “Sentencing procedures generally”. Prior to the enactment of Div 1A, s 22(1) provided that a court passing sentence on an offender who has pleaded guilty must take into account that fact, the timing of the plea or indication of…

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 Black v R

Details

AGLC: Black v R [2022] NSWCCA 17
Case: [2022] NSWCCA 17
Decision Date: 11 February 2022

CaseChat Overview and Summary

The case of Black v R involved the defendant, Black, who was charged with manslaughter. The dispute centred around the appropriate sentencing discount to be applied to the defendant's sentence due to his guilty plea. The court was required to determine whether a specific discount under section 25E(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was available when the defendant made an offer to plead guilty to a less serious offence, which was initially refused by the prosecutor. Additionally, the court had to interpret whether the alternative offence constituted a "different offence" under section 25E(3)(a) of the Act.

The court analysed the statutory language and the legislative intent behind the sentencing provisions. It found that the discount was indeed applicable in this scenario, as the statutory language allowed for a discount when an offer to plead guilty to a less serious offence was made and accepted. The court also determined that the alternative offence was not a "different offence" for the purposes of the Act, allowing for the application of the discount. The court's interpretation emphasised the importance of considering the legislative intent to encourage guilty pleas, even when the initial offer pertains to a different offence.

As a result of the court's decision, Black was granted a 25% discount on his sentence due to his guilty plea. This discount was applied in accordance with section 25E(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court's ruling clarified the scope of the sentencing discount provisions and provided guidance on the interpretation of related statutory language. The final orders were made in accordance with the court's decision, with the sentencing discount applied to the defendant's sentence.

Orders