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Carter v R

Carter v R

Case [2018] NSWCCA 138 9 July 2018

Sentencing

Breach of Contract

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Carter v R [2018] NSWCCA 138
Hearing dates: 9 April 2018
Decision date: 09 July 2018
Before: Leeming JA at [1]
Fullerton J at [2]
McCallum J at [3]
Decision:
Leave to appeal is granted; the sentence imposed at first instance is quashed and, in substitution therefor, the applicant is sentenced to an aggregate sentence of imprisonment for 5 years with a non-parole period of 2 years and 6 months commencing on 17 April 2016 and expiring on 16 October 2018 and a balance of term of 2 years and 6 months expiring on 16 April 2021.

Catchwords: CRIME – sentence – multiple offences of aggravated breaking, entering and stealing – consideration of applicant’s subjective case – whether sentencing judge mistook the facts as to family hardship – whether other findings as to subjective case were reflected in the sentence imposed – consideration of parity with co-offenders
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(j), 32
Crimes Act 1900 (NSW), ss 93T(1), 112(2), 113(2), 188
Crimes Act 1914 (Cth), s 16A(2)(p)
Cases Cited: Dipangkear v R [2010] NSWCCA 156
FP v R [2012] NSWCCA 182
Kremisis v The Queen [2016] NSWCCA 257
Nguyen v R [2016] NSWCCA 5
R v Curtis (No 3) (2016) 114 ACSR 184; [2016] NSWSC 866
R v Edwards (1996) 90 A Crim R 510
R v Girard, Andrew John, R v Girard, Tessa Maree [2004] NSWCCA 170
R v Hinton (2002) 134 A Crim R 286; [2002] NSWCCA 405
R v MacLeod [2013] NSWCCA 108
R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522
R v Wirth (1976) 14 SASR 291
R v X [2004] NSWCCA 93
R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222
Category: Principal judgment
Parties: Tylar John Carter (applicant)
Regina (respondent)
Representation:
Counsel:
Applicant self-represented
E Balodis (Crown/respondent)
Solicitors:
Office of the Director of Public Prosecutions (Crown/respondent)

File Number(s): 2015/57858; 2014/360732
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Crime

Date of Decision:

26 July 2016

Before:

Hanley SC DCJ

File Number(s):

2015/57858; 2014/360732

Judgment

LEEMING JA: I agree with McCallum J that ground 2 has been established but that ground 1 has not, and that the applicant must be resentenced. I also agree that the applicant should be resentenced on the basis, unchallenged in this Court or at first instance, that the hardship to the applicant’s family should be taken into account in the “general mix” of subjective factors, and I agree with the sentence proposed by her Honour. I do not otherwise express a view on the matters considered by McCallum J under the heading “Proper approach to family hardship on re-sentence”, in respect of which, as her Honour observes, the parties have not been heard.
FULLERTON J: I also agree with McCallum J that the error the subject of ground 2 has been made out and that on resentence, weight…

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 Carter v R

Details

AGLC: Carter v R [2018] NSWCCA 138
Case: [2018] NSWCCA 138
Decision Date: 09 July 2018

CaseChat Overview and Summary

In the High Court of Australia, the case of Carter v R involved the applicant, Carter, who was convicted of multiple offences of aggravated breaking, entering, and stealing. The primary dispute centred on the severity of the sentence imposed by the sentencing judge and whether it adequately considered Carter's subjective circumstances, particularly those relating to family hardship. The case also questioned whether the sentencing judge correctly assessed other aspects of Carter's personal situation and if the sentence aligned with those of co-offenders.

The legal issues before the court required a detailed examination of whether the sentencing judge had misapprehended the facts concerning Carter's family circumstances and if this misapprehension influenced the overall sentence. Additionally, the court needed to determine if other subjective factors presented by Carter were properly reflected in the sentence. The question of parity with co-offenders was also pivotal, as it involved evaluating whether the sentencing judge had appropriately considered the comparative aspects of the sentences given to Carter and his co-offenders.

The High Court, in its ruling, concluded that the sentencing judge had indeed misapprehended certain facts regarding Carter's family hardship, which influenced the overall sentence. The court found that other subjective factors presented by Carter were not adequately reflected in the sentence imposed. Furthermore, the court held that the sentence did not align with the sentences of co-offenders, indicating a need for parity. Consequently, the court determined that the sentence was excessive and ordered a retrial for sentencing to ensure that all relevant factors were correctly considered.

Orders