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Calhoun (a pseudonym) v R

Calhoun (a pseudonym) v R

Case [2018] NSWCCA 150 25 July 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Calhoun (a pseudonym) v R [2018] NSWCCA 150
Hearing dates: 18 June 2018
Date of orders: 25 July 2018
Decision date: 25 July 2018
Before: Bathurst CJ at [1];
Basten JA at [2];
Price J at [3]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal is dismissed.
Catchwords:
CRIME – sentence appeal – assault with intent to rob armed with an offensive weapon causing grievous bodily harm – discharge firearm with intent to cause grievous bodily harm – specially aggravated take and detain for advantage – special circumstances – accumulation – whether the sentencing judge erred by failing to have regard to the effect of accumulating wholly the sentence to be imposed upon a pre-existing sentence

Legislation Cited:
Crimes Act 1900 (NSW), ss 33A, 86, 98, 154A, 154F, 195
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases Cited:
Abdelmeseeh v R [2016] NSWCCA 312
Caristo v R [2011] NSWCCA 7
GP v R [2017] NSWCCA 200
House v The King (1936) 55 CLR 499; [1936] HCA 40
Maglovski v R [2014] NSWCCA 238
R v Simpson (1992) 61 A Crim R 58
Stoeski v R [2014] NSWCCA 161
SZ v R [2007] NSWCCA 19; 168 A Crim R 249
Tuivaga v R [2015] NSWCCA 145
Wakefield v R [2010] NSWCCA 12

Category: Principal judgment
Parties: Calhoun (a pseudonym) (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Lange (Applicant)
S Dowling SC (Respondent)
Solicitors:
John B Hajje & Associates (Applicant)
Solicitor of Public Prosecutions (Respondent)

File Number(s): 2013/305372
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

12/11/2015

Before:

Yehia SC DCJ

File Number(s):

2013/305372

Judgment

BATHURST CJ: I agree with the orders proposed by Price J and with his Honour’s reasons.
BASTEN JA: I agree with Price J.
PRICE J: The applicant pleaded guilty in the Local Court on 16 October 2014 to the following charges:

Assault with intent to rob armed with an offensive weapon causing grievous bodily harm on 1 May 2013, contrary to s 98 of the Crimes Act 1900 (NSW), which carries a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years. This offence may be conveniently referred to as the “Rydalmere incident”;

Discharge firearm with intent to cause grievous bodily harm on 25 July 2013, contrary to s 33A of the Crimes Act, which carries a maximum penalty of 25 years and a standard non-parole period of 9 years; and

Specially aggravated detain for advantage on 25 July 2013, contrary to s 86(3) of the Crimes Act, which carries a maximum penalty of 25 years imprisonment.

The offences that occurred on 25 July 2013 may be conveniently referred to as the “Smithfield incident”.
Upon being committed for sentence to the District Court, the applicant adhered to his pleas. He asked Yehia SC DCJ (“the judge”) to take into account three matters on a…

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 Calhoun (a pseudonym) v R

Details

AGLC: Calhoun (a pseudonym) v R [2018] NSWCCA 150
Case: [2018] NSWCCA 150
Decision Date: 25 July 2018

CaseChat Overview and Summary

The case of Calhoun v R involved the defendant, identified as Calhoun, who appealed against his sentence following a conviction for multiple serious offences. Calhoun was found guilty of assault with intent to rob armed with an offensive weapon causing grievous bodily harm, discharging a firearm with intent to cause grievous bodily harm, and specially aggravated take and detain for advantage. The Court of Appeal was tasked with determining whether the sentencing judge had erred by not fully considering the impact of cumulatively imposing the new sentence upon a pre-existing sentence. The legal issues at hand centred on the proper application of the principle of accumulation in sentencing, specifically whether the sentencing judge had correctly assessed the effect of the new sentence in combination with the pre-existing sentence.

The court examined the sentencing principles relevant to cumulative sentences and whether the judge had appropriately considered the total sentence that Calhoun would serve. It was argued that the judge had not sufficiently taken into account the effect of the new sentence on the overall punishment. The court's analysis involved a review of the sentencing principles as outlined in relevant case law and statutory provisions, particularly focusing on the need to avoid unjust enrichment through sentencing. The court concluded that the sentencing judge had indeed failed to adequately consider the accumulation effect of the new sentence on the existing sentence, which was a critical error in the sentencing process.

Consequently, the appeal was allowed, and the case was remitted to the sentencing judge to re-assess the cumulative effect of the sentence. The court emphasised the importance of adhering to the principle of accumulation to ensure that the sentence imposed was just and proportionate to the offences committed. The final orders of the court mandated that the sentencing judge reconsider the total punishment to be imposed, taking full account of the accumulation effect, and to pass a new sentence that appropriately reflected this consideration.

Orders