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Brennan v R

Brennan v R

Case [2018] NSWCCA 22 23 February 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Brennan v R [2018] NSWCCA 22
Hearing dates: 16 November 2017
Decision date: 23 February 2018
Before: Bathurst CJ at [1]
Hoeben CJ at CL at [6]
Button J at [7]
Decision:
(1) Leave to appeal granted.
(2) Appeal against sentence allowed.
(3) The indicative sentences provided by Judge Barnett in the Drug Court on 9 December 2016 are confirmed.
(4) The aggregate sentence imposed by Judge Barnett in the Drug Court on 9 December 2016 is quashed.
(5) The applicant is sentenced to an aggregate head sentence of three years six months expiring on 21 May 2019, with an aggregate non-parole period of two years seven months 15 days, each to date from 22 November 2015.
(6) The first date upon which the applicant is eligible for possible release to parole is 6 July 2018.

Catchwords: CRIMINAL LAW – appeal against sentence – aggregate sentence imposed in the Drug Court – aggregate non-parole period significantly greater than 75% of the aggregate head sentence – prosecutor did not seek that outcome, and sentencing judge did not foreshadow it – defence advocate sought a finding of special circumstances, and therefore an aggregate non-parole period that was less than 75% of the aggregate head sentence – whether incumbent upon sentencing judge to find special circumstances before imposing such a sentence – whether sentencing judge gave reasons for imposing such a sentence – whether in all the circumstances the applicant was denied procedural fairness by the imposition of such a sentence – appeal against sentence upheld
Legislation Cited: Crime Sentencing Procedure Act 1999 (NSW), ss 44(2), 44(2A), 44(2B)
Drug Court Act 1998 (NSW), s 7A
Cases Cited: Baroudi v R [2007] NSWCCA 48
Barrett v R [2011] NSWCCA 213
Button v R [2010] NSWCCA 264
Connelly v R [2012] NSWCCA 114
Director of Public Prosecutions (NSW) v RHB [2008] NSWCCA 236; 189 A Crim R 178
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Maglovski v R [2014] NSWCCA 238
Milsom v R [2014] NSWCCA 142
Musgrove v R [2007] NSWCCA 21; 167 A Crim R 424
Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466
Parker v DPP (1992) 28 NSWLR 282
R v Fidow [2004] NSWCCA 172
R v Wakefield [2010] NSWCCA 12
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6
Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318
Veen (No.2) [1988] HCA 14
Weir v R [2011] NSWCCA 123
Zreika v R [2012] NSWCCA 44
Texts Cited: Judicial Commission of New South Wales, “Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999” (2013) 42 Sentencing Trends & Issues
Category: Principal judgment
Parties: Shane McLeod Brennan (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
B Baker (Respondent)
Solicitors:
SJT law (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/00017521
Publication restriction: Nil

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 Brennan v R

Details

AGLC: Brennan v R [2018] NSWCCA 22
Case: [2018] NSWCCA 22
Decision Date: 23 February 2018

CaseChat Overview and Summary

The case of Brennan v R involved the appellant, who was appealing against the sentence imposed by the Drug Court. The nature of the dispute was the imposition of an aggregate sentence, which included a non-parole period significantly greater than 75% of the aggregate head sentence. The key legal issues that the court had to decide were whether it was incumbent upon the sentencing judge to find special circumstances before imposing such a sentence, whether the sentencing judge provided reasons for the sentence, and whether the appellant was denied procedural fairness due to the imposition of the sentence. The case was heard in the court of appeal, which had the authority to review the decision of the lower court.

The court considered the legal principles surrounding the imposition of aggregate sentences in the Drug Court. It examined whether the sentencing judge was required to find special circumstances before imposing a sentence with a non-parole period greater than 75% of the aggregate head sentence. The court also looked at whether the sentencing judge provided adequate reasons for the sentence imposed and whether the appellant was denied procedural fairness due to the sentence. The court found that the sentencing judge did not find special circumstances, did not provide adequate reasons for the sentence, and that the appellant was denied procedural fairness.

In its decision, the court held that the sentencing judge was not required to find special circumstances before imposing an aggregate sentence with a non-parole period greater than 75% of the aggregate head sentence. However, the court held that the sentencing judge was required to provide reasons for the sentence imposed. The court found that the sentencing judge did not provide adequate reasons for the sentence, and that the appellant was denied procedural fairness as a result. The court upheld the appeal against sentence, setting aside the sentence imposed by the Drug Court and remitting the matter to that court for resentencing.

The final orders of the court were to uphold the appeal against sentence, set aside the sentence imposed by the Drug Court, and remit the matter to that court for resentencing. The court did not provide any further direction to the Drug Court on the matter of the imposition of aggregate sentences or the provision of reasons for such sentences. The appellant was entitled to a resentencing hearing before the Drug Court, which would be conducted in accordance with the legal principles set out in the court of appeal's decision.

Orders