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Brown v The King

Brown v The King

Case [2024] NSWCCA 136 26 July 2024

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Brown v R [2024] NSWCCA 136
Hearing dates: 25 March 2024
Decision date: 26 July 2024
Before: Harrison CJ at CL at [1];
Button J at [2];
Dhanji J at [96]
Decision:
(1)   Leave to appeal against sentence granted, appeal upheld, and sentence imposed at first instance quashed.
(2)   Instead, the applicant is sentenced to an aggregate head sentence of 4 years, to commence on 1 February 2023 and expire on 31 January 2027, with a non-parole period of 2 years 10 months, to expire on 30 November 2025.
(3)   The first date upon which it appears the applicant will be eligible for possible release to parole is 30 November 2025.

Catchwords:
CRIME – appeals – sentence appeal – where applicant pleaded guilty to numerous property offences – where applicant on conditional liberty at time of offending – new aggregate sentence partly cumulative upon balance of parole – whether error in failure to consider the effect of the applicant’s balance of parole on the “statutory ratio” between total non-parole period and total head sentence – where special circumstances not found – no evidence of express intention to extend ratio beyond 75% – appeal allowed – discussion of issues arising from Kentwell v The Queen and Lehn v R – applicant resentenced afresh – lesser sentence warranted in law
CRIME – appeals – sentence appeal – where applicant pleaded guilty to numerous property offences – one count of enter dwelling-house with intent to commit larceny – circumstances of aggravation – whether error in finding the offending was aggravated by the fact that it was committed in a home – discussion of complexities surrounding aggravating factors listed in Crimes (Sentencing Procedure) Act 1999 (NSW) – no error by way of double counting established – breadth of statutory definition of “dwelling-house” – authorities to the effect that concepts underpinning “dwelling-house” and “home” are different
CRIME – appeals – sentence appeal – manifest excess – extensive criminal record – offending whilst subject to conditional liberty – history of disciplinary actions in custody – background of profound deprivation – mental illness – drug and alcohol dependence – whether sentence imposed failed to reflect appropriate consideration of the applicant’s disadvantaged upbringing and history of abuse – difference between satisfaction that sentence imposed is manifestly excessive and satisfaction that lesser sentence is warranted in law on resentence – sentence imposed not manifestly excessive

Legislation Cited:
Crimes Act 1900 (NSW) ss 4, 99(1), 105A(f), 111(2), 112, 117, 154F, 195(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(eb)
Criminal Appeal Act 1912 (NSW) s 6(3)
Drug Misuse and Trafficking Act 1985 (NSW) s 10(1)

Cases Cited:
Baxter v R (2007) 173 A Crim R 284; [2007] NSWCCA 237
BB v R [2017] NSWCCA 189
Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17
Brennan v R [2018] NSWCCA 22
Christian v R [2021] NSWCCA 300
Chung v R [2017] NSWCCA 48
DB v R [2024]…

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 The King

Details

AGLC: Brown v The King [2024] NSWCCA 136
Case: [2024] NSWCCA 136
Decision Date: 26 July 2024

CaseChat Overview and Summary

The case of Brown v The King involves an appeal against a sentence imposed by the Supreme Court of New South Wales. The applicant, who had previously pleaded guilty to multiple property offences, including entering a dwelling-house with intent to commit larceny, was on conditional liberty at the time of the offending. The legal issues that arose from this appeal pertain to whether the court correctly considered the effect of the applicant’s balance of parole on the statutory ratio between the total non-parole period and the total head sentence. Additionally, the appeal questioned whether the offence was properly classified as aggravated due to it being committed in a home. The applicant argued that the sentence failed to adequately consider his disadvantaged upbringing, history of abuse, mental illness, and drug and alcohol dependence.

The court examined the principles established in Kentwell v The Queen and Lehn v R, focusing on the proper application of statutory ratios and the interpretation of aggravating factors. It was determined that there was no error in the court's failure to consider the effect of the applicant’s balance of parole on the statutory ratio, as no special circumstances were found and there was no evidence of an express intention to extend the ratio beyond 75%. The court also clarified the distinction between the statutory definition of a "dwelling-house" and the concept of a "home," concluding that no double counting of aggravating factors had occurred. The appeal was allowed due to the lesser sentence being warranted in law, and the applicant was resentenced afresh.

The final orders of the court were to allow the appeal and to resentence the applicant, providing a lesser sentence that reflected a proper consideration of the mitigating factors. The court emphasised the difference between finding a sentence manifestly excessive and determining that a lesser sentence is warranted in law on resentence. The resentence was to be proportionate to the nature and circumstances of the offences, taking into account the applicant's background and the principles of sentencing.

Orders