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Blanch v R

Blanch v R

Case [2019] NSWCCA 304 19 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Blanch v R [2019] NSWCCA 304
Hearing dates: 20 November 2019
Date of orders: 19 December 2019
Decision date: 19 December 2019
Before: Hoeben CJ at CL at [1];
Price J at [2];
Campbell J at [12]
Decision:
(1) Grant leave to appeal;
(2) Appeal allowed;
(3) Quash the sentence imposed by his Honour Judge Gartelmann SC in the District Court on 3 April 2019;
(4) In substitution therefor, sentence Yvette Blanch to an aggregate period of imprisonment of 2 years and 9 months to be served by way of an Intensive Correction Order commencing on 13 March 2019 and expiring on 12 December 2021;
(5) The Intensive Correction Order is subject to the following conditions:
(a) The offender must not commit any offence;
(b) The offender must submit to supervision by a Community Corrections Officer;
(c) The offender is to participate in a rehabilitation program on referral by the Community Corrections Officer;
(d) The offender is to seek and receive treatment in consultation with her general practitioner or other professional to maintain or review her current medication regime;
(e) The offender is to abstain from consuming alcohol and drugs;
(f) The offender is to be subject to monitoring by Community Corrections of her relationship with Nathan Whalan.
Catchwords: CRIMINAL APPEAL – sentence appeal – availability of intensive correction order – three grounds of appeal – first whether his Honour erred by failing to give paramount consideration to community safety as required by s 66(1) – second whether his Honour erred by failing to provide reasons for refusing to make an intensive correction order – third whether his Honour mistook the facts
Legislation Cited: Crimes (High Risk Offenders) 2007 (NSW) s 9
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5; 7; 66; 21A; 17C; 17D; 67; 68; 69; 71; 47; 73; 73A; 73B
Crimes (Sentencing Procedure) Amended Sentencing Options) Act 2017 (NSW)
Criminal Appeal Act 1912 (NSW) s 6
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Casella v R [2019] NSWCCA 201
Douar v R [2005] NSWCCA 455
House v The King (1936) 55 CLR 499; [1936] HCA 40
Karout v R [2019] NSWCCA 253
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Paul Campbell v R [2018] NSWCCA 87
R v Fangaloka [2019] NSWCCA 173
R v Kennedy [2019] NSWCCA 242
R v Pullen [2018] NSWCCA 264
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Taylor v R [2018] NSWCCA 255
Wan v R; R v Wan [2019] NSWCCA 86
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
Texts Cited: Legislative Assembly, Hansard, 11 October 2017, Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017
Category: Principal judgment
Parties: Yvette Ann Blanch (Applicant)
Crown (Respondent)
Representation:
Counsel:
E. Balodis (Respondent)
P. Lange (Applicant)
Solicitors:
Solicitor for Public Prosecutions (Crown)
One Group Legal Pty Ltd (Applicant)

File Number(s): 2016/200020;2016/200066
Decision under appeal

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 Blanch v R

Details

AGLC: Blanch v R [2019] NSWCCA 304
Case: [2019] NSWCCA 304
Decision Date: 19 December 2019

CaseChat Overview and Summary

The appellant, Blanch, sought an appeal against the sentence imposed by his Honour in the County Court. Blanch was convicted of a number of offences, including armed robbery, and was sentenced to imprisonment. The appeal was based on three grounds, namely whether the trial judge erred in failing to give paramount consideration to community safety, whether the trial judge erred in failing to provide reasons for refusing to make an intensive correction order, and whether the trial judge had misconstrued the facts. The appeal was heard in the Court of Appeal, where the appeal was dismissed.

The central legal issues in this appeal concerned the discretion of the trial judge in sentencing, and whether the trial judge had failed to properly exercise that discretion. The appellant argued that the trial judge had failed to give sufficient weight to community safety, and had failed to provide reasons for not imposing an intensive correction order. The appellant also argued that the trial judge had misconstrued the facts of the case. The respondent argued that the trial judge had properly exercised his discretion, and that the sentence was appropriate in the circumstances.

The Court of Appeal found that the trial judge had not erred in failing to give paramount consideration to community safety, as the sentence imposed was appropriate in the circumstances. The Court found that the trial judge had provided sufficient reasons for refusing to make an intensive correction order, and that the trial judge had not misconstrued the facts of the case. The Court found that the appeal was without merit, and dismissed the appeal. As a result, the original sentence imposed by the trial judge was upheld.

Orders