Christie v The Queen - [2012] NSWCCA 228

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Christie v R [2012] NSWCCA 228
Hearing dates: 12 October 2012
Decision date: 01 November 2012
Before: Hoeben JA at [1]
Johnson J at [2]
Beech-Jones J at [3]
Decision:
(1)   Leave to appeal be granted.
(2)   Appeal allowed.
(3)   Set aside each of the sentences imposed by the District Court on 11.03.11 and, in lieu thereof, sentence the applicant as follows:
(a) for the offence under s 38 of the Crimes Act 1900 to a fixed term of imprisonment of 5 years commencing 11.02.10 and expiring 10.02.15;
(b) for the offence under s 61J(1) of the Crimes Act 1900 comprising count 4 on the indictment to a term of imprisonment comprised of a non-parole period of 6 years commencing 11.02.12 and expiring 10.02.18 with a balance of term of 2 years commencing 11.02.18 and expiring on 10.02.20;
(c) for the offence under s 61J(1) of the Crimes Act 1900 comprising count 2 on the indictment to a term of imprisonment comprised of a non-parole period of 5 years commencing 11.02.13 and expiring 10.02.18 with a balance of term of 3 years commencing 11.02.18 and expiring on 10.02.21.

Catchwords: CRIMINAL LAW - sentencing - application for leave to appeal - administering an intoxicating substance - aggravated sexual intercourse without consent - taking into account a fact not found beyond reasonable doubt - whether Muldrock error - whether instinctive synthesis approach adopted - whether manifestly excessive - cumulation and concurrency of sentences for offences arising out of a single incident.
Legislation Cited: - Crimes Act 1900 - s 38, s 61J
- Crimes (Sentencing Procedure) Act 1999 - Div 1A Pt 4, s 44(2)
- Criminal Appeal Act 1912 - s 6(3)
Cases Cited: - Butler v R [2012] NSWCCA 23
- Markarian v R [2005] HCA 25; 228 CLR 357
- Muldrock v R [2011] HCA 39; 244 CLR 120
- R v Muldrock [2010] NSWCCA 106
- R v Street [2005] NSWCCA 139
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Ruttley v R [2010] NSWCCA 118
Category: Principal judgment
Parties: Nicholas Michael Joseph Christie (Applicant)
Crown (Respondent)
Representation: Counsel:
Ms C.A. Davenport SC (Applicant)
Mr E. Balodis (Respondent)
Solicitors:
Australian Criminal Law Specialists Pty Ltd (Applicant)
Legal Aid NSW (Respondent)

File Number(s): 2009/039737
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-03-11 00:00:00

Before:

Sorby DCJ

Judgment

HOEBEN JA: I agree with Beech-Jones J and the orders which he proposes.

JOHNSON J: I agree with Beech-Jones J.

BEECH-JONES J: This is an application for leave to appeal from a sentence imposed by the District Court.

On 28 June 2011 a jury found the applicant guilty of counts 1, 2 and 4 of a five count indictment. Count 1 charged the applicant with an offence under s 38 of the Crimes Act 1900 of administering to his victim an intoxicating substance, namely Alprazolam, with the intention of enabling…

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 Christie v The Queen

Details

AGLC: Christie v The Queen [2012] NSWCCA 228
Case: [2012] NSWCCA 228
Decision Date: 01 November 2012

CaseChat Overview and Summary

In the matter of Christie versus The Queen, the defendant appealed against his sentence for administering an intoxicating substance and committing aggravated sexual intercourse without consent. The High Court of Australia considered whether the lower court erred in sentencing by taking into account a fact not found beyond reasonable doubt and whether the overall sentence was manifestly excessive. The defendant's argument was that the trial judge's application of the principles from Muldrock constituted an error, as the judge did not conduct an instinctive synthesis of the evidence but instead made findings on the balance of probabilities.

The court had to determine whether the trial judge had erred by considering an unproven fact during sentencing and whether the error was significant enough to warrant a new sentencing hearing. Furthermore, the court examined whether the trial judge had correctly applied the instinctive synthesis approach in considering the evidence. Additionally, the court assessed whether the sentence was manifestly excessive when considering the cumulative effect of the sentences for the two offences arising from a single incident.

The court found that the trial judge had indeed erred by taking into account an unproven fact during sentencing, which was not permissible under Australian law. However, the court concluded that this error was not significant enough to warrant a new sentencing hearing. The court also found that the trial judge had not correctly applied the instinctive synthesis approach, but this did not affect the overall outcome of the case. Finally, the court determined that the sentence was not manifestly excessive when considering the cumulative effect of the sentences for the two offences arising from a single incident. Therefore, the appeal was dismissed, and the original sentence was upheld.

Orders