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Brown v R

Brown v R

Case [2018] NSWCCA 257 21 November 2018

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Brown v R [2018] NSWCCA 257
Hearing dates: 26 September 2018
Date of orders: 21 November 2018
Decision date: 21 November 2018
Before: Payne JA at [1], Johnson J at [49], N Adams J at [99]
Decision:
(1)   Application for leave to appeal granted;
(2)   Appeal allowed;
(3)   Matter remitted to the District Court for re-sentence.
(4)   Vary the order made in relation to the confidential affidavit on the file so that the sealed envelope may be opened by order of a judge of the District Court.

Catchwords:
SENTENCING — application for leave to appeal against sentence – Whether gross failure by applicant’s legal representatives properly to advise about evidence on sentence
SENTENCING – whether applicant denied opportunity to give evidence at sentencing hearing
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Crimes Act 1900 (NSW), s 112
Criminal Appeal Act 1912 (NSW), ss 5, 6, 12
Cases Cited: Alvares v R (2011) 209 A Crim R 297; [2011] NSWCCA 33
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Butters v R [2010] NSWCCA 1
Craig v R (2018) 92 ALJR 390; [2018] HCA 13
Hanna v R [2017] NSWCCA 168
Imbornone v R [2017] NSWCCA 144
Mun v R [2015] NSWCCA 234
Newman v R [2018] NSWCCA 208
Sankar v State of Trinidad and Tobago [1995] 1 WLR 194
R v Gray [1977] VR 225
R v Fernando (1992) 76 A Crim R 58
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353;
R v Whyte (2004) 7 VR 397; [2004] VSCA 5
Raymond John Munro v Regina [2006] NSWCCA 350
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Tsiakas v R [2015] NSWCCA 187
Texts Cited: Freiberg, “Fox and Freiberg’s Sentencing: State and Federal Law in Victoria”, Lawbook Co, 2014
Category: Principal judgment
Parties: Darren Brown (Applicant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
G Lewer (Applicant)
B Hatfield (Respondent)
Solicitors:
S Joyner (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/336785
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

10 June 2016

Before:

Acting Judge Hosking SC

File Number(s):

2014/336785

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Brown, the applicant, was sentenced in the District Court following a plea of guilty to 12 break, enter and steal offences contrary to s 112(1)(a) of the Crimes Act 1900 (NSW). The applicant had entered Australia [redacted] using a false [redacted] passport for the purpose of committing break, enter and steal offences on behalf of a criminal syndicate [redacted] who funded his accommodation, food and car in Australia. The applicant used the phone book to target Chinese and Indian families based on their surnames, obtaining their addresses and telephone numbers.…

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 Brown v R

Details

AGLC: Brown v R [2018] NSWCCA 257
Case: [2018] NSWCCA 257
Decision Date: 21 November 2018

CaseChat Overview and Summary

In the High Court of Australia, Brown applied for leave to appeal against his sentence, which was imposed after his conviction for various criminal charges. The crux of the appeal concerns the alleged inadequacy of legal representation during the sentencing phase, specifically whether the applicant's counsel failed to properly advise him about certain evidence that could have impacted his sentence. Additionally, the applicant argues that he was not given an adequate opportunity to give evidence at the sentencing hearing. The central issues revolve around the adequacy of legal representation and the procedural fairness of the sentencing process.

The court was tasked with determining whether the failure of the applicant's legal representatives to properly advise him about evidence constituted a gross failure warranting a departure from the usual rules of appellate jurisdiction. Furthermore, the court examined whether the applicant was effectively denied the opportunity to give evidence at the sentencing hearing, and if this denial impacted the fairness and outcome of the sentence imposed. The court considered the principles of fairness, the right to legal representation, and the importance of a comprehensive sentencing process.

The High Court found that there was indeed a gross failure by the applicant's legal representatives in properly advising him about the evidence. The court noted that this failure was significant and affected the fairness of the sentencing process. Additionally, the court determined that the applicant was not afforded an adequate opportunity to give evidence, which further prejudiced the fairness of the proceedings. Consequently, the court granted leave to appeal against the sentence, finding that the errors were substantial enough to warrant appellate intervention. The case was remitted to the original sentencing court for reconsideration in light of these findings.

Orders