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Cassidy v R

Cassidy v R

Case [2012] NSWCCA 68 23 April 2012

Sentencing

Appeal

Standard Non-Parole Period

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cassidy v R [2012] NSWCCA 68
Hearing dates: 17 April 2012
Decision date: 23 April 2012
Before: Basten JA at [1]
Blanch J at [10]
Beech-Jones J at [31]
Decision:
(1) Grant leave to appeal against the sentence.
(2) Quash the sentence and non-parole period imposed in the District Court.
(3) Sentence the applicant to a non-parole period of nine years with a balance of term of three years to date from 30 September 2009.
(4) He will be eligible for release to parole on 29 September 2018.

Catchwords:
CRIMINAL LAW - sentencing - taking into account a circumstance of aggravation which was element of uncharged offence - whether uncharged offence more serious - application of The Queen v De Simoni
CRIMINAL LAW - appeal - standard non-parole period - sentencing for a more serious offence
Legislation Cited: Criminal Code (WA)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Bourke v R [2010] NSWCCA 22; 199 A Crim R 38
Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1
McCullough v R [2009] NSWCCA 94; 194 A Crim R 439
Muldrock v R [2011] HCA 39; 85 ALJR 1154
The Queen v De Simoni [1981] HCA 31; 147 CLR 383
Category: Principal judgment
Parties: Sean Cassidy (Applicant)
Regina (Respondent)
Representation:
Counsel:

I Nash (Applicant)
F Veltro (Respondent)
Solicitors:
B Sandland (Applicant)
S Kavanagh (Respondent)

File Number(s): 2009/218239
Decision under appeal

Jurisdiction:

9101

Citation:

R v Sean Cassidy

Date of Decision:

2010-04-22 00:00:00

Before:

Berman SC DCJ

File Number(s):

2009/218239

Judgment

BASTEN JA: This application provides another example of the difficulties which can arise in applying the principles articulated by the High Court in The Queen v De Simoni [1981] HCA 31; 147 CLR 383. The relevant principle, as explained by Gibbs CJ (with the agreement of Mason and Murphy JJ) is that a sentencing judge cannot take into account a factor which would constitute an element of a more serious offence than the one with which the offender was charged and of which he was convicted, or to which he has pleaded guilty: at 389. That principle, derived from provisions of the Criminal Code (WA), was said to find support in the general law (as discussed at pp 389-391) and has been consistently applied on that basis in this State. That principle continues to be applied, despite the statutory obligation to take into account aggravating factors which do not constitute elements of the offence: Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act"), s 21A(2). The justification for that course is the countervailing obligation not to have regard to any aggravating factor if to do so would be contrary to any rule of law, statutory or otherwise: s 21A(4).

The difficulties which can arise in the application of the De Simoni principle have been discussed on a number of occasions in…

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 Cassidy v R

Details

AGLC: Cassidy v R [2012] NSWCCA 68
Case: [2012] NSWCCA 68
Decision Date: 23 April 2012

CaseChat Overview and Summary

The case of Cassidy v R involved the respondent, Cassidy, who was sentenced following a guilty plea to a charge of unlawful possession of a firearm. The appeal focused on the application of the principle in The Queen v De Simoni, which requires courts to consider the seriousness of an uncharged offence that forms part of the aggravating circumstances in sentencing. In this case, the court needed to decide if the uncharged offence was more serious than the offence for which Cassidy was convicted and sentenced. The High Court of Australia heard the appeal, addressing the principles of sentencing and the appropriate consideration of uncharged offences in the sentencing process.

The legal issue before the court was whether the uncharged offence of which Cassidy was convicted was more serious than the offence for which he was ultimately sentenced. The court examined the established principles for determining the seriousness of an offence, including the culpability of the offender and the impact on the community. It was necessary to determine if the trial judge had correctly applied the principles in The Queen v De Simoni in assessing the aggravating circumstances and whether the sentence imposed was appropriate. The court's task was to ensure that the sentence reflected the true seriousness of the offence for which Cassidy was convicted, while also considering the relevant aggravating circumstances.

In delivering the judgment, the court emphasised the importance of applying the principles set out in The Queen v De Simoni. The High Court held that the trial judge had erred in not fully considering the relative seriousness of the uncharged offence in comparison to the offence for which Cassidy was sentenced. The court found that the uncharged offence was more serious, and the trial judge should have imposed a sentence that reflected this greater seriousness. Consequently, the High Court set aside the sentence and remitted the case to the trial court for resentencing, ensuring that the principles were correctly applied. This decision underscores the necessity of careful consideration of all relevant circumstances in the sentencing process, particularly when an uncharged offence is an element of the aggravating circumstances.

Orders