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Campbell v R

Campbell v R

Case [2018] NSWCCA 17 14 February 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Campbell v R [2018] NSWCCA 17
Hearing dates: 27 October 2017
Date of orders: 14 February 2018
Decision date: 14 February 2018
Before: Latham J
Bellew J
Campbell J
Decision:
(1) Grant leave to appeal and allow the appeal;
(2) Quash the sentence passed in the District Court on 14 December 2016 and instead sentence the applicant to a term of imprisonment, having a non-parole period of 2 years and 2 months commencing on 1 April 2016 and expiring on 31 May 2018 with an additional term of 2 years and 8 months commencing on 1 June 2018 and expiring on 31 January 2021. The applicant will be first eligible for parole after the expiration of the non-parole on 31 May 2018.

Catchwords: CRIMINAL LAW – appeal against sentence - misstatement of maximum penalty - whether sentencing judge acted on wrong maximum - evidence of progress toward rehabilitation since sentence
Legislation Cited: Crimes Act 1900 (NSW), ss 33B, 51B, 61, 112, 154A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 33, 53A
Road Rules 2014 (NSW), reg 287
Road Transport Act 2013 (NSW), ss 53, 117
Cases Cited: Andreata v R [2015] NSWCCA 239
Attorney General’s Application Under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 146; [2002] NSWCCA 518
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Builders Licensing Board v Mahoney (1986) 5 NSWLR 96
Donaghey v R [2015] NSWCCA 119
House v R [1936] HCA 40; 55 CLR 499
Kilgannon v Sharpe Brothers Pty Limited (1986) 4 NSWLR 600
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Newton v R [2009] NSWCCA 128
Zaky v R (Cth) [2017] NSWCCA 141
Texts Cited: Nil
Category: Principal judgment
Parties: Craig Campbell (Applicant)
Regina (Crown)
Representation:
Counsel:
T Quilter (Applicant)
M Cinque SC (Respondent)
Solicitors:
F Cavadini (Aboriginal Legal Service)
C Hyland Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/273771; 2015/285582
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

14 December 2016

Before:

Judge Bennett SC

File Number(s):

2015/273771

Judgment

LATHAM J: I agree with Campbell J
BELLEW J: I agree with Campbell J.
CAMPBELL J: On his pleas of guilty entered in the Local Court the applicant was convicted and sentenced in the District Court on 14 December 2016 to an aggregate term of imprisonment of 5 years and 6 months dating from 1 April 2016 and expiring on 30 September 2021 with a non-parole period of 2 years and 9 months expiring on 30 December 2018. He was also disqualified from driving for 2 years.
The applicant seeks leave to appeal from the sentence relying upon the sole ground that in passing sentence the learned sentencing judge “erred by…

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 Campbell v R

Details

AGLC: Campbell v R [2018] NSWCCA 17
Case: [2018] NSWCCA 17
Decision Date: 14 February 2018

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia. The appellant, Campbell, appealed against a sentence imposed by the Supreme Court of New South Wales, challenging the severity of the sentence and claiming that the sentencing judge had erred in the maximum penalty he considered. Campbell had been convicted of drug-related offences and received a sentence at the upper end of the range available under the legislation. He argued that the sentencing judge had been influenced by an incorrect understanding of the maximum penalty that could be imposed.

The primary issue before the Court was whether the sentencing judge had erred in his understanding of the maximum penalty applicable to the offence, and if so, whether this error was significant enough to warrant a reduction in the sentence. The Court had to consider whether the sentencing judge's misstatement of the maximum penalty constituted a legally significant error, and if this error had any impact on the sentence imposed. The Court also had to examine the evidence presented by Campbell regarding his rehabilitation progress since the sentence was handed down.

In its judgment, the Court found that the sentencing judge had indeed misunderstood the maximum penalty applicable to the offence, but this misstatement did not affect the sentence imposed. The Court held that the sentencing judge had correctly applied the law in determining the sentence and had not been influenced by the incorrect maximum penalty. The Court further noted that the evidence of Campbell's rehabilitation progress since the sentence did not provide a sufficient basis to reduce the sentence. The Court dismissed the appeal, upholding the sentence imposed by the Supreme Court of New South Wales.

The High Court of Australia dismissed the appeal and affirmed the sentence imposed by the Supreme Court of New South Wales. The Court held that the sentencing judge's misstatement of the maximum penalty did not constitute a legally significant error and did not impact the sentence. The Court further found that the evidence of Campbell's rehabilitation progress since the sentence did not warrant a reduction in the sentence.

Orders