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Brown v R

Brown v R

Case [2010] NSWCCA 73 3 May 2010

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New South Wales
Court of Criminal Appeal

CITATION: Brown v R, R v Brown [2010] NSWCCA 73

HEARING DATE(S): 08/09 2009

JUDGMENT DATE:
3 May 2010

JUDGMENT OF: Macfarlan JA at 1; Howie J at 2; Hislop J at 79

DECISION: 1. Leave to the respondent to appeal against his sentence is refused.
2. The Crown appeal is allowed and the sentences imposed in the District Court are quashed.
3. In lieu the respondent is sentenced
(a) for the offence of accessory before the fact to maliciously damage property by fire to a sentence consisting of non-parole period of 21 months and balance of term of 7 months that sentence to commence on 15 June 2009. The non-parole period is to expire on 14 March 2011
the date upon which the respondent would be released to parole but for the sentence for the conspiracy offence
(b) for the offence of conspiracy to cheat and defraud and taking into account the Form 1 matters
to a term of imprisonment made up of a non-parole period of 2 years 4 months to date from 15 June 2010 with a balance of term of 1 year 2 months. The non-parole period expires on 14 October 2012 the date upon which the respondent is eligible to be released to parole.

CATCHWORDS: CRIMINAL LAW - Sentence - offences of fraud and accessory before the fact to arson - application for leave to appeal and Crown appeal - whether sentences manifestly excessive in light of assistance by applicant - whether sentences manifestly inadequate - whether error in determining penalty for common law offence - whether error in making sentences concurrent - whether insufficient regard to matters on Form 1 - effect of delay in determining the Crown appeal

LEGISLATION CITED: Crimes Act 1900 - ss 178BA
197(1)(b)
300
Crimes (Sentencing Procedure) Act 1999 - ss 21A(2)(m)
23(3)
Crimes (Appeal and Review) Act 2001 - s 68A
Criminal Appeal Act 1912 - s 5D

CATEGORY: Principal judgment

CASES CITED: SZ v R [2007] NSWCCA 19
R v Sukkar [2006] NSWCCA 92
R v Mostyn [2004] NSWCCA 304
R v S [2000] NSWCCA 13
111 A Crim R 225
R v Fordham (1997) 98 A Crim R 359
R v Many (1990) 51 A Crim R 54
R v Cartwright (1989) 17 NSWLR 243
Tyler v R [2007] NSWCCA 247
R v Ashton [2002] NSWCCA 498
137 A Crim R 73
Goss v R [2009] NSWCCA 190
R v Hoar [1981] HCA 67
148 CLR 32
Verrier v director of Public Prosecutions [1967] 2 AC 195
Tyler and Chalmers v R [2007] NSWCCA 247
178 A Crim R 247
R v Koh [2001] NSWCCA 324
R v XX [2009] NSWCCA 115
Cahyadi v R [2007] NSWCCA 1
168 A Crim R 41
R v JW [2010] NSWCCA 49

PARTIES: Gareth Brown v Regina, Regina v Gareth Brown

FILE NUMBER(S): CCA 2008/14983

COUNSEL: N Noman - Crown
R Bonnici - Applicant and Respondent

SOLICITORS: S Kavanagh - Crown
C…

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 [2010] NSWCCA 73
Case: [2010] NSWCCA 73
Decision Date: 3 May 2010

CaseChat Overview and Summary

In the case of Brown v R, the applicant, Brown, sought leave to appeal against his conviction and sentence, while the Crown pursued an appeal, contending that the sentence was inadequate. The applicant was found guilty of various counts of fraud and being an accessory before the fact to arson. The trial judge sentenced Brown to imprisonment, which the Crown deemed inadequate given the seriousness of the offences. The applicant argued that his sentence was excessive, particularly considering the assistance he provided to the prosecution.

The legal issues before the court included whether the sentences imposed were manifestly excessive or inadequate, whether there was an error in determining the penalty for the common law offence, and whether it was erroneous to make the sentences concurrent. Additionally, the court had to consider whether the trial judge had given insufficient regard to the matters outlined in Form 1, and the impact, if any, of the delay in determining the Crown appeal.

The court examined the nature and circumstances of the offences, the role of the applicant, and the assistance provided to the prosecution. It concluded that the sentences were not manifestly excessive, given the gravity of the crimes committed. The court found no error in the determination of the penalty for the common law offence or in making the sentences concurrent. Regarding the matters on Form 1, the court held that while there was some delay in determining the Crown appeal, it did not affect the outcome. The application for leave to appeal was dismissed, and the Crown's appeal was allowed, resulting in Brown receiving a harsher sentence.

Orders