PARTIES: Jason Callaghan - Applicant Crown - Respondent
JUDGMENT OF: James J Simpson J Hall J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 05/21/1104
LOWER COURT JUDICIAL OFFICER: English DCJ
COUNSEL: A Francis - Applicant V Lydiard - Respondent
SOLICITORS: SE O'Connor - Applicant S Kavanagh - Respondent
CATCHWORDS: application for leave to appeal against severity of sentence two charges of break and enter with intent to steal pleas of guilty offences committed whilst on parole parole revoked sentences in respect of present offences made fully cumulative upon the head sentence is respect of previous offences effect of revocation of parole whether applicant doubly punished for the fact that offences were committed whilst on parole discretion to backdate a sentence where parole has been revoked by reason of the offence for which the offender is to be sentenced exercise of discretion found not to have miscarried
DECISION: Application for leave to appeal against severity of sentence granted; appeal dismissed.
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
2006/293
JAMES J SIMPSON J HALL J
Friday 10 March 2006
Jason CALLAGHAN v REGINA
Judgment
JAMES J: I agree with Simpson J.
SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 14 October 2005 following his pleas of guilty to two charges of break and enter with intent to steal. On the first count the applicant was sentenced to imprisonment for a fixed term of six months; on the second, to imprisonment for a total period of two years with a non-parole period of twelve months. Both sentences were fixed to commence on 15 July 2005, the first to be served concurrently with the second, longer term.
Given the very narrow scope of the application, the circumstances of the offences and matters personal to the applicant may be outlined succinctly.
The two offences were committed in the same premises, nine days apart. On 11 January 2005, late at night, and again on 20 January 2005, in the early hours of the morning, the applicant used an object to smash a glass panel in a video shop at Seven Hills. He entered the premises and searched drawers and cupboards but left without taking any money or property. On the earlier occasion, having left the premises, the applicant returned and re-entered, but again left with no property.
The applicant was arrested on 27 January 2005. He has remained in custody since that date. At the time of these offences he was at liberty on parole in respect of a series of offences for which he was sentenced in the Parramatta Local Court on 24 June 2004. The sentencing judge took this into account, properly, as a factor aggravating the applicant’s criminality: see Crimes (Sentencing…
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 Callaghan v R
Sign in free to access the full text
Details
AGLC
Callaghan v R [2006] NSWCCA 58
Case
[2006] NSWCCA 58
Decision Date
CaseChat Overview and Summary
The applicant, Callaghan, appealed against the severity of the sentence imposed by the Supreme Court of Queensland. He was convicted on two charges of break and enter with intent to steal, to which he pleaded guilty. These offences were committed while he was on parole for previous offences. The applicant's parole was revoked, and the sentences in respect of the present offences were made fully cumulative upon the head sentence in respect of the previous offences. The applicant argued that he was doubly punished for the fact that the offences were committed while on parole, and that the discretion to backdate a sentence where parole had been revoked by reason of the offence for which the offender is to be sentenced should have been exercised. The court was required to determine whether the applicant had been doubly punished and whether the exercise of discretion to backdate the sentence had miscarried.
The court found that the applicant had not been doubly punished for the fact that the offences were committed while on parole. The court noted that the revocation of parole was a consequence of the commission of the offences, and that the sentences were cumulative upon the head sentence for the previous offences. The court also found that the exercise of discretion to backdate the sentence had not miscarried. The court noted that the applicant had not demonstrated any special circumstances that warranted the exercise of the discretion in his favour. The court held that the sentence imposed was not manifestly excessive or inappropriate.
The applicant's application for leave to appeal against the severity of the sentence was dismissed. The court found that the sentence imposed was not manifestly excessive or inappropriate, and that the applicant had not been doubly punished for the fact that the offences were committed while on parole. The court also found that the exercise of discretion to backdate the sentence had not miscarried. The applicant's application for leave to appeal was dismissed, and the sentences imposed by the Supreme Court of Queensland were upheld.