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Church v R

Church v R

Case [2012] NSWCCA 149 10 July 2012

Appeal

Perverting the Course of Justice

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Church v R [2012] NSWCCA 149
Hearing dates: 18 June 2012
Decision date: 10 July 2012
Before: McClellan CJ at CL at [1]
Price J at [2]
Button J at [3]
Decision:
(1)Leave to appeal granted.
(2)Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - perverting the course of justice by omission - no error in forming opinion as to the sentence that ought to have been imposed - no error in taking into account sentence that ought to have been imposed - no failure to take into account extra-curial punishment - no error in finding specific deterrence was a significant consideration - sentence not manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: House v R [1936] HCA 40; (1936) 55 CLR 499
Kenny v R [2010] NSWCCA 6
Markarian v R [2005] HCA 25; (2005) 228 CLR 257
R v Allpass (1993) 72 A Crim R 561
R v Einfeld [2010] NSWCCA 87; (2010) 200 A Crim R 1
R v Nguyen [2004] NSWCCA 332; (2004) 149 A Crim R 343
Category: Principal judgment
Parties: Leanne Tracey Church (applicant)
Regina (respondent)
Representation: Counsel:
R Burgess (applicant)
R Herps (respondent)
Solicitors:
Legal Aid NSW (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2010/91962
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-10-14 00:00:00

Before:

Colefax DCJ

File Number(s):

2010/91962

Judgment

McCLELLAN CJ AT CL: I agree with Button J.

PRICE J: I agree with Button J.

BUTTON J:

Introduction

On 14 October 2011 in the District Court at Parramatta, Judge Colefax SC convicted Leanne Tracey Church ("the applicant") of one count of making an omission intending to pervert the course of justice. The offence was brought pursuant to s 319 of the Crimes Act 1900, and carries a maximum penalty of imprisonment for 14 years and no standard non-parole period. His Honour proceeded to sentence the applicant to imprisonment for a total term of 2 years 8 months, with a non-parole period of 1 year 4 months. Clearly enough, special circumstances were found that permitted a variation of the statutory ratio; if that had not occurred, the non-parole period would have been imprisonment for 2 years. The applicant seeks leave to appeal to this Court with regard to that sentence.

Chronology

On 5 April 2006, a dispute took place between the daughter of the applicant and another woman ("the victim") at the Royal Hotel in Hill End in the Central West of New South Wales. Violence ensued, and the victim was left with swelling and bruising to much of her body. The applicant joined in the attack by her daughter on the victim. The applicant was charged with assault occasioning actual bodily harm.

In the months after that, the applicant led people in Hill End to believe that she was suffering from cancer. That was not true. The pretence was not limited to words. It…

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 Church v R

Details

AGLC: Church v R [2012] NSWCCA 149
Case: [2012] NSWCCA 149
Decision Date: 10 July 2012

CaseChat Overview and Summary

In this case, the appellant, Church, appealed against the sentence imposed upon him for perverting the course of justice by omission. The appeal was heard by the High Court of Australia. The primary issue before the court was whether the trial judge erred in forming an opinion about the appropriate sentence for the offence committed, and whether the sentence imposed was manifestly excessive.

The court considered the various factors the trial judge took into account in determining the sentence. It found no error in the judge's approach to sentencing. The court held that the trial judge was entitled to form an opinion about the appropriate sentence, and that it was not necessary for the judge to make specific findings about the degree of culpability or the appropriate penalty. The court also found that the trial judge did not fail to take into account the extra-curial punishment that the appellant had already received. Furthermore, the court held that the trial judge was entitled to consider specific deterrence as a significant factor in determining the sentence.

In conclusion, the court found no error in the trial judge's sentencing process, and dismissed the appeal. The sentence imposed by the trial judge was affirmed, and no further orders were made.

Orders