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Christian v R

Christian v R

Case [2021] NSWCCA 300 14 December 2021

Sentencing

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Christian v R [2021] NSWCCA 300
Hearing dates: 18 October 2021
Date of orders: 14 December 2021
Decision date: 14 December 2021
Before: Beech-Jones CJ at CL at [1]
R A Hulme J at [43]
Dhanji J at [51]
Decision:
(1)   Leave to appeal against sentence granted;
(2)   Appeal allowed;
(3)   The sentence imposed on the appellant on 26 November 2019 is set aside;
(4)   In lieu thereof:
(a)   Sentence the Appellant to an aggregate term of imprisonment of 7 years and 6 months commencing on 23 November 2017 and expiring on 22 May 2025,
(b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 5 years expiring on 22 November 2022;
(c)   Specify that the earliest date the applicant will be eligible to be released on parole is 22 November 2022;
(d) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are those identified in [38] of this judgment.

Catchwords:
SENTENCE APPEAL – aggregate sentence – numerous offences of intimidation and violence – finding of special circumstances but not given effect to – error – scope of re-exercise of sentencing discretion – whether confined to adjusting non-parole period or complete re-exercise required – Crown did not consent to confining appeal to adjusting non-parole period – sentencing discretion re-exercised

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

Cases Cited:
Almaoiue v R [2021] NSWCCA 274
Carroll v R [2015] NSWCCA 219
CM v R [2013] NSWCCA 341
Daniels v R [2016] NSWCCA 35
Haines v R [2016] NSWCCA 90
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Martin v R [2016] NSWCCA 104
O’Connell v R [2016] NSWCCA 43
Sabongi v R [2015] NSWCCA 25
Zeiser v R [2020] NSWCCA 154

Category: Principal judgment
Parties: Rishaad Christian (Applicant)
Regina (Respondent)
Representation:
Counsel:
L Brasch (Applicant)
C Curtis (Crown)
Solicitors:
The Criminal Law Centre (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2017/147157
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

26 November 2019

Before:

Hanley SC DCJ

File Number(s):

2017/147157

Judgment

BEECH-JONES CJ at CL: This is an application for leave to appeal from a sentence imposed for a number of offences of violence. The only ground of appeal is that, although the sentencing judge made a finding of “special circumstances” for the purposes of s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Act”), his Honour did not give effect to it when specifying a non-parole period. The Crown conceded that his Honour so erred. The parties disagreed about whether the error could be addressed by simply adjusting the non-parole period of the sentence imposed 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 Christian v R

Details

AGLC: Christian v R [2021] NSWCCA 300
Case: [2021] NSWCCA 300
Decision Date: 14 December 2021

CaseChat Overview and Summary

The appellant, Christian, was convicted of numerous offences involving intimidation and violence. He appealed against his sentence, arguing that the primary judge erred in not giving effect to the finding of special circumstances. The appeal was heard in the High Court of Australia. The legal issues before the court were whether the error in not considering special circumstances required a complete re-exercise of the sentencing discretion or whether it was sufficient to simply adjust the non-parole period. The court also needed to determine the scope of re-exercising the sentencing discretion and whether it was confined to adjusting the non-parole period or if a complete re-exercise was required.

The High Court found that the error in not considering special circumstances warranted a complete re-exercise of the sentencing discretion. The court held that the error was not confined to the adjustment of the non-parole period but required a complete re-evaluation of the sentence. The Crown had not consented to limiting the appeal to the adjustment of the non-parole period. Therefore, the court re-exercised its sentencing discretion, taking into account the special circumstances, and determined the appropriate sentence for the appellant. The court's decision emphasised the importance of correctly considering all relevant factors in sentencing, particularly when special circumstances are found to exist.

Orders