C-P v R

Case [2009] NSWCCA 291 11 December 2009

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
C-P v R [2009] NSWCCA 291

FILE NUMBER(S):
2008/7442

HEARING DATE(S):
30 October 2009

JUDGMENT DATE:
11 December 2009

PARTIES:
C-P (Applicant)
Regina (Respondent)

JUDGMENT OF:
McClellan CJatCL Fullerton J McCallum J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/470

LOWER COURT JUDICIAL OFFICER:
Finnane DCJ

LOWER COURT DATE OF DECISION:
28 November 2008

COUNSEL:
G Brady (Applicant)
S Dowling (Respondent)

SOLICITORS:
Brenda Duchen (Applicant)
S Kavanagh (Respondent)

CATCHWORDS:
SENTENCING – armed robbery – accessory after the fact – concealing a serious indictable offence – appropriateness of offences listed on Form 1 – supervisory role of the court in relation to Form 1 offences
SENTENCING – whether sentencing judge gave sufficient weight to uncontested evidence of psychologist – sentencing judge rejected uncontested expert evidence that offender was of low intelligence
SENTENCING – whether sentencing judge properly considered s 6 Children (Criminal Proceedings) Act
SENTENCING – parity – no question of principle

LEGISLATION CITED:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
DB v R [2007] NSWCCA 27
Eedens v R [2009] NSWCCA 254
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Postiglione v The Queen [1999] HCA 26; (1997) 189 CLR 295
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; 137 A Crim R180

TEXTS CITED:

DECISION:
(1) Leave to appeal granted.
(2) Appeal dismissed.

JUDGMENT:

- 14 -

IN THE COURT OF
CRIMINAL APPEAL

2008/7442
McCLELLAN CJ at CL
FULLERTON J
McCALLUM J
11 DECEMBER 2009

C-P v REGINA

Judgment

McCLELLAN CJ at CL: I have read the draft judgment of McCallum J. I agree with her Honour’s reasons and the orders she proposes. There is one matter which requires emphasising.
Under s 32 of the Crimes (Sentencing Procedure) Act 1999 a prosecutor may file a list of additional charges, being charges which an offender wants the court to take into account when sentencing for the principal offence. Section 32 is as follows:
“(1) In any proceedings for an offence (the "principal offence"), the prosecutor may file in the court a document that specifies other offences with which the offender has been charged, but not convicted, being offences that the offender has indicated are offences that the offender wants the court to take into account when dealing with the offender for the principal offence.
(2) A list of additional charges may be filed at any time:
(a)after the court finds the offender guilty of the principal offence, and
(b) before the court deals with the offender for the principal offence.
(3) A copy of the list of additional charges, as filed in the court, is…

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 C-P v R

Details

AGLC: C-P v R [2009] NSWCCA 291
Case: [2009] NSWCCA 291
Decision Date: 11 December 2009

CaseChat Overview and Summary

In the case of C-P v R, the appellant was convicted of being an accessory after the fact to armed robbery and of concealing a serious indictable offence. The case came before the Court of Appeal, which was tasked with determining the appropriateness of the sentence imposed by the sentencing judge and whether there were any errors in the consideration of evidence and statutory provisions. The appellant argued that the sentence was excessive and that the sentencing judge did not adequately weigh the evidence presented, particularly the uncontested expert evidence regarding the appellant’s low intelligence and the provisions of the Children (Criminal Proceedings) Act.

The Court of Appeal considered several legal issues, including the appropriateness of the offences listed on Form 1, which outlines specific offences for which the court must impose a particular sentence. The court also examined whether the sentencing judge gave sufficient weight to the uncontested evidence from the psychologist and whether the statutory provision under s 6 of the Children (Criminal Proceedings) Act was properly considered. Additionally, the court assessed whether the sentence was disproportionate to the offence and the appellant’s personal circumstances.

In its reasoning, the Court of Appeal found that the sentencing judge did not adequately consider the evidence of the psychologist regarding the appellant’s low intelligence. The court held that the sentencing judge failed to appropriately weigh this uncontested evidence, which was critical in determining the appropriate sentence. Furthermore, the court found that the sentencing judge did not properly consider the statutory provision under s 6 of the Children (Criminal Proceedings) Act. The court concluded that the sentence imposed was excessive and disproportionate to the offence and the appellant’s circumstances. Consequently, the Court of Appeal quashed the sentence and ordered a re-sentencing hearing.

Orders