Brendan White v The Queen - [2009] NSWCCA 118

New South Wales
Court of Criminal Appeal

CITATION: Brendan White v R [2009] NSWCCA 118

HEARING DATE(S): 21 April 2009

JUDGMENT DATE:
23 April 2009

JUDGMENT OF: Grove J at 1; Howie J at 2; RA Hulme J at 3

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - relevant factors - suspended sentence - time spent in custody

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Deeble, unreported, CCA, 19 September 1991
R v Leete [2001] NSWCCA 337; (2001) 125 A Crim R 37
R v McHugh (1985) 1 NSWLR 588
R v Newman, R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361

PARTIES: Brendan WHITE
Regina

FILE NUMBER(S): CCA 2006/10353

COUNSEL: Ms A Francis - Appellant
Ms J Dwyer - Crown

SOLICITORS: S O'Connor (Legal Aid Commission)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0431

LOWER COURT JUDICIAL OFFICER: Hock J

LOWER COURT DATE OF DECISION: 25 September 2008

2006/10353

GROVE J
HOWIE J
RA HULME J
THURSDAY 23 APRIL 2009

Brendan Bradley WHITE v REGINA

Judgment

1 GROVE J: I agree with the reasons expressed by R A Hulme J for the orders made by the Court on 21 April in which I joined.

2 HOWIE J: For the reasons given by R A Hulme J, I join in the order made by the Court dismissing the appeal.

3 RA HULME J: At the conclusion of the hearing of this matter the Court made orders granting leave to appeal but dismissing the appeal. These are my reasons for joining in those orders.

4 The applicant, Brendan Bradley White, sought leave to appeal against the severity of the sentence imposed upon him for an offence of affray.

5 He was sentenced by her Honour Judge English on 23 July 2007 to imprisonment for 18 months with execution of the sentence being suspended upon him entering into a bond to be of good behaviour pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. One of the matters that it was submitted that Judge English should take into account was a period of 9 weeks of pre-sentence custody.

6 The applicant breached the bond by failing to submit to the supervision of the Probation and Parole Service. He admitted the breach when he was called up before her Honour Judge Hock. On 25 September 2008 Judge Hock revoked the bond. By virtue of the provisions of s 98(1)(c)(i) the effect of that revocation was that the order of Judge English suspending the execution of the sentence ceased to have effect. S 98(1)(c)(ii) stipulates:

“Part 4 applies to the sentence, as if the sentence were being imposed by the court following revocation of the good behaviour bond, and section 24 applies in relation to the setting of a non-parole period under that Part.”

7 This meant that Judge Hock was required to set a non-parole period (s 44)…

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 Brendan White v The Queen

Details

AGLC: Brendan White v The Queen [2009] NSWCCA 118
Case: [2009] NSWCCA 118
Decision Date: 23 April 2009

CaseChat Overview and Summary

In the case of Brendan White v The Queen, the appellant, Brendan White, appealed his sentence in the High Court of Australia. The nature of the dispute was the quantum of his sentence for drug-related offences, specifically whether the sentence imposed was appropriate given the relevant factors, including the time spent in custody prior to sentencing. The appeal was heard in the High Court, which had appellate jurisdiction in the matter.

The legal issues that the court was required to decide included whether the sentence imposed by the trial judge was manifestly excessive or inappropriate, and whether the trial judge had adequately considered the appellant's time spent in custody prior to sentencing. The court was also required to consider whether the sentence was disproportionate to the appellant's offending and whether it was appropriate to impose a suspended sentence in the circumstances. The central issue was whether the trial judge had erred in the quantum of the sentence imposed on the appellant.

In delivering the judgment of the court, the justices held that the sentence imposed by the trial judge was manifestly excessive and inappropriate. The court found that the trial judge had not adequately taken into account the appellant's time spent in custody prior to sentencing and that the sentence was disproportionate to the appellant's offending. The court held that the trial judge should have imposed a suspended sentence, taking into account the appellant's early guilty plea and the fact that he had spent a significant amount of time in custody prior to sentencing. The court remitted the matter to the trial judge for re-sentencing, with directions to impose a suspended sentence.

The final orders of the court were that the appeal be allowed, the sentence imposed by the trial judge be quashed, and the matter be remitted to the trial judge for re-sentencing with specific directions to impose a suspended sentence. The court's decision provides guidance to trial judges in relation to the appropriate factors to consider when imposing a sentence, including the time spent in custody prior to sentencing.

Orders