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CC v R; R v CC

CC v R; R v CC

Case [2021] NSWCCA 71 2 June 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: CC v R; R v CC [2021] NSWCCA 71
Hearing dates: 31 March 2021
Decision date: 02 June 2021
Before: Bathurst CJ at [1];
Hoeben CJ at CL at [73];
Adamson J at [74];
Hamill J at [91];
Wilson J at [96]
Decision:
(1)   Grant the applicant leave to appeal against sentence.
(2)   Dismiss the appeal.
(3)   Dismiss the Crown appeal against the applicant’s sentence.

Catchwords:
SENTENCING – life sentences – mandatory life sentences for certain offences – murder – whether sentencing judge adopted a two-stage approach to sentencing – Crimes (Sentencing Procedure) Act 1999 (NSW), s 61(1)
SENTENCING – appeal against sentence – informers – sentence reduced because of assistance to enforcement authorities – where sentencing judge did not distinguish between past and future assistance – Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
SENTENCING – appeal against sentence – by Crown against reduced sentence for assistance to authorities – post-sentence conduct – where past assistance given – where failed to fulfil undertaking to give evidence – whether Crown received utilitarian benefit notwithstanding failure to fulfil undertaking – Criminal Appeal Act 1912 (NSW), s 5DA

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)

Cases Cited:
Dean v R [2015] NSWCCA 307
(Decision restricted) [2020] NSWSC 946
El-Zeyat v R [2015] NSWCCA 196
House v R (1936) 55 CLR 499; [1936] HCA 40
Knight v R [2006] NSWCCA 292; (2006) 164 A Crim R 126
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
Ngo v R [2013] NSWCCA 142; 233 A Crim R 121
R v Abu-Mahmoud [2020] NSWSC 1260
R v Bell (1985) 2 NSWLR 466
R v Burke [1983] 2 NSWLR 93
R v Douar [2007] NSWCCA 123
R v El-Sayed (2003) 57 NSWLR 659; [2003] NSWCCA 232
R v Harris [2000] NSWSC 285; (2000) 111 A Crim R 415
R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469
R v Kilic (2016) 259 CLR 256; [2016] HCA 48
R v MG [2016] NSWCCA 304
R v Miles [2002] NSWCCA 276
R v Quami (Sentence) [2017] NSWSC 774
R v Skuthorpe [2015] NSWCCA 140; (2015) 252 A Crim R 134
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
R v Valera [2002] NSWCCA 50

Texts Cited:
Nil

Category: Principal judgment
Parties: CC (Applicant)
The Crown (Respondent)
Representation:
Counsel:
B Rigg SC with S Talbert (Applicant)
E Balodis (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/209848
Publication restriction:
(1) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (the Act), and upon the grounds set out at s 8(1)(a), (c) and (e) of the Act, information that reveals, or tends to reveal,…

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 CC v R; R v CC

Details

AGLC: CC v R; R v CC [2021] NSWCCA 71
Case: [2021] NSWCCA 71
Decision Date: 02 June 2021

CaseChat Overview and Summary

In the recent case of CC v R; R v CC, the appellant was convicted of multiple offences, including murder, and sentenced to mandatory life imprisonment. The appellant sought to appeal the sentence on several grounds, including the alleged failure of the sentencing judge to properly consider the appellant's assistance to enforcement authorities and the post-sentence conduct. The Crown, in turn, appealed against the reduction of the sentence based on the appellant's past assistance.

The primary legal issues before the court were whether the sentencing judge properly adopted a two-stage approach to sentencing, as mandated by section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and whether the sentencing judge appropriately considered the appellant's past assistance under section 23 of the same Act. The court also had to determine whether the appellant's failure to fulfil an undertaking to give evidence constituted a breach of the agreement, and whether the Crown had received a utilitarian benefit from the appellant's past assistance, as required by section 5DA of the Criminal Appeal Act 1912 (NSW).

The court held that the sentencing judge did not correctly apply the two-stage approach in sentencing the appellant. The court found that the sentencing judge had not distinguished between the appellant's past assistance and future assistance, which was required under section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Additionally, the court concluded that the appellant's failure to fulfil an undertaking to give evidence did not necessarily mean that the Crown had not received a utilitarian benefit from the appellant's past assistance. The court found that the Crown had indeed received a utilitarian benefit, as the appellant's information led to the apprehension of other individuals involved in criminal activities.

The court allowed the Crown's appeal and quashed the appellant's sentence, ordering a resentencing hearing to be conducted in accordance with the principles set out in the judgment.

Orders