Brennan v The Queen - [2011] NSWCCA 278

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Brennan v R [2011] NSWCCA 278
Hearing dates: 15 November 2011
Decision date: 16 December 2011
Before: Whealy JA, Simpson J, Hislop J
Decision:
1. Grant leave to appeal in respect of the sentence on Count 1.
2. Quash the sentence on Count 1.
3. In lieu thereof, sentence the applicant on Count 1 to a non parole period of three years six months imprisonment commencing on 26 March 2010 and expiring on 25 September 2013 with a balance of term of 14 months to commence on 26 September 2013 and expire on 25 November 2014.
4. Affirm the sentence on Count 2.

Legislation Cited: Crimes Act 1900
Cases Cited: Kershaw v R [2009] NSWCCA 19
Category: Principal judgment
Parties: Christopher John Brennan v R
Representation: G. Corr (Applicant)
T. Smith (Respondent)
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/263112
Decision under appeal

Date of Decision:

2010-09-03 00:00:00

Before:

McLoughlin DCJ

File Number(s):

2009/263112

Judgment

WHEALY JA : I agree with Hislop J.

SIMPSON J : I agree with Hislop J.

HISLOP J : The applicant was charged on indictment on the following counts:

Count 1: The applicant, in circumstances of aggravation, did break and enter a dwelling house and therein did intimidate an occupant contrary to s 112(2) of the Crimes Act 1900. The maximum penalty for that offence is 20 years imprisonment. A standard non parole period of five years is applicable to this offence.

Count 2: The applicant did attempt to steal a motor vehicle the property of another contrary to s 154F/344A of the Crimes Act 1900. The maximum penalty for this offence is ten years imprisonment.

The applicant pleaded guilty to each count.

The applicant was sentenced, as to Count 1, to a non parole period of four years two months imprisonment to commence on 26 March 2010 and expire on 25 May 2014, with a balance of term of 18 months to commence on 26 May 2014 and expire on 25 November 2015.

The applicant was sentenced, as to Count 2, to a non parole period of 12 months imprisonment commencing on 26 November 2009 and expiring on 25 November 2010 with a balance of term of four months to commence on 26 November 2010 and expire on 25 March 2011.

In sentencing the applicant the court took into account four offences on a Form 1. The offences were assault occasioning actual bodily harm, assault, reckless damage and larceny. Each of these offences occurred at the same time and place as counts 1 and 2.

The applicant has sought leave to appeal against sentence on the ground that

"His Honour erred in relying upon an incorrect standard non parole as a guidepost when sentencing the Appellant."

His Honour, in his remarks on sentence, stated that the standard non parole period for count 1 was seven years. It was conceded by the respondent that his Honour had been misinformed…

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 The Queen

Details

AGLC: Brennan v The Queen [2011] NSWCCA 278
Case: [2011] NSWCCA 278
Decision Date: 16 December 2011

CaseChat Overview and Summary

In the case of Brennan v The Queen, the appellant, Christopher John Brennan, appealed against his sentence on Count 1 of the indictment, which related to breaking and entering a dwelling house and intimidating an occupant. The appellant pleaded guilty to both Count 1 and Count 2, which involved attempting to steal a motor vehicle. The Court of Criminal Appeal, Supreme Court of New South Wales, granted leave to appeal against the sentence on Count 1 due to a material error in the standard non-parole period applied by the primary judge. The primary judge had mistakenly applied a seven-year standard non-parole period instead of the correct five-year period.

The central legal issue before the Court of Criminal Appeal was whether the primary judge's reliance on an incorrect standard non-parole period constituted a material error that warranted an adjustment in the appellant's sentence. The Court considered whether the error had influenced the primary judge's assessment of the appropriate sentence and whether it warranted a downward adjustment in the sentence, in line with the principles set out in Kershaw v R [2009] NSWCCA 19.

The Court found that the primary judge had indeed relied on an incorrect standard non-parole period, which led to an inflated sentencing benchmark. Consequently, the Court concluded that the appellant had demonstrated a material error and that the sentence should be adjusted accordingly. The Court quashed the original sentence on Count 1 and re-sentenced the appellant, imposing a non-parole period of three years and six months, with a balance of term of 14 months. The sentence on Count 2 was affirmed as there was no appeal against it.

The Court of Criminal Appeal thus granted leave to appeal against the sentence on Count 1, quashed the original sentence, and imposed a new sentence that took into account the correct standard non-parole period. The sentence on Count 2 remained unchanged.

Orders