Black v The Queen - [2008] NSWCCA 337

New South Wales
Court of Criminal Appeal

CITATION: Black v R [2008] NSWCCA 337

HEARING DATE(S): 15 December 2008

JUDGMENT DATE:
22 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Simpson J at 25; Latham J at 26

DECISION: 1.Leave to appeal granted and appeal upheld.
2.Sentence imposed in the District Court quashed.
3.Sentence the applicant to a non-parole period of 18 months commencing on 6 April 2009 and expiring on 5 October 2010 with a further term of 18 months expiring on 5 April 2012.

CATCHWORDS: CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons - applicant convicted of doing an act with intent to influence a witness - sentence manifestly excessive - Crimes Act 1900 s 323(a)

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: MB v R [2007] NSWCCA 245

PARTIES: Michael Black (Applicant)
The Crown

FILE NUMBER(S): CCA 2007/7075

COUNSEL: H Cox (Applicant)
P Calvert (Crown)

SOLICITORS: Legal Aid Commission for NSW (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/41/0008

LOWER COURT JUDICIAL OFFICER: Conlon DCJ

LOWER COURT DATE OF DECISION: 27 September 2007

2007/7075

McCLELLAN CJ at CL
SIMPSON J
LATHAM J
MONDAY, 22 DECEMBER 2008

BLACK, Michael v R

Judgment

1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against the sentence imposed upon him in respect of one count of doing an act with intent to influence a witness contrary to s 323(a) Crimes Act 1900. The maximum penalty for the offence is imprisonment for seven years. The applicant was sentenced to a non-parole period of three years commencing on 6 January 2008 and expiring on 5 January 2011 with a balance of term of two years imprisonment commencing on 6 January 2011 and expiring on 5 January 2013.

2 The practical effect of his sentence was to add one year to the sentence which had already been imposed for offences of malicious wounding and aggravated car-jacking. It was the complainant, in the malicious wounding matter who the applicant attempted to influence when committing the present offence.

3 In this Court the Crown did not resist the applicant’s submission that the sentence imposed for the attempt to influence offence was excessive and requires the intervention of this Court. It is accordingly necessary to determine the appropriate sentence and in particular having regard to matters of totality the period of full time custody which the applicant should serve before being released to parole.

The facts

4 After a trial in the District Court the applicant was found guilty of a charge contrary to s 154C of assaulting with intent to take a motor vehicle whilst in company (aggravated car jacking). James Koning and his partner Rebecca Noakes were Crown witnesses and gave evidence at the trial.

5 The applicant was in custody prior to the commencement of the trial and sent a letter…

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 The Queen

Details

AGLC: Black v The Queen [2008] NSWCCA 337
Case: [2008] NSWCCA 337
Decision Date: 22 December 2008

CaseChat Overview and Summary

The appellant was convicted of an offence under section 323(a) of the Crimes Act 1900, which involves doing an act with intent to influence a witness. The conviction pertained to an incident where the appellant was found guilty of intimidating a witness. The appellant filed an appeal against both the conviction and the sentence, arguing that the sentence was manifestly excessive and that there were errors in the trial process that warranted a new trial. The case was heard in the High Court of Australia.

The legal issues before the court were twofold. Firstly, whether there were sufficient grounds to order a new trial due to alleged errors in the trial process. Secondly, whether the sentence imposed was manifestly excessive. The appellant argued that the trial judge erred in failing to direct the jury on the standard of proof, which was a significant procedural error. Furthermore, the appellant contended that the sentence was manifestly excessive given the circumstances of the case and the appellant's background.

The court considered the arguments regarding the alleged procedural errors and found that the trial judge did not err in failing to direct the jury on the standard of proof. The court held that the trial judge's directions were sufficient and did not prejudice the appellant's case. Regarding the sentence, the court examined whether it was manifestly excessive. After a thorough review, the court determined that the sentence was not manifestly excessive and was within the range of appropriate penalties for the offence. Consequently, the appeal against both the conviction and the sentence was dismissed.

No further orders were made by the court.

Orders