CL v R

Case [2014] NSWCCA 196 29 September 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: CL v R [2014] NSWCCA 196
Hearing dates: 19 September 2014
Decision date: 29 September 2014
Before: Hoeben CJ at CL at [1]
Fullerton J at [2]
Adamson J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against aggregate sentence - corrupt conduct by serving police officer - Detective Sergeant - weight to be accorded to relevant factors a matter for the sentencing judge - applicant bound by his counsel's consent to tender agreed facts at sentence hearing - no disparity between co-offenders as different charges were laid - fact that applicant's offending conduct was intercepted by diligent policing before it could run its intended course did not ameliorate the applicant's criminality - sentence not manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 99, 111, 117, 178BA, 188, 249B, 249F, 308C
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24B, 44, 53A
Criminal Appeal Act 1912 (NSW), s 5
Cases Cited: Dinsdale v R [2000] HCA 54; 202 CLR 321
Gas v The Queen; SJK v The Queen [2004] HCA 22; 217 CLR 198
Green v The Queen [2011] HCA 49; 244 CLR 462
Hili v The Queen [2010] HCA 45; 242 CLR 520
Jimmy v R [2010] NSWCCA 60; 77 NSWLR 540
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Hilder (Court of Criminal Appeal (NSW), 13 May 1993, unrep)
R v Irwin [1999] NSWCCA 361
R v Olbrich [1999] HCA 54; 199 CLR 270
R v Perez-Vargas (1987) 8 NSWLR 559
R v Todd [1982] 2 NSWLR 517
Ryan v The Queen [2001] HCA 21; 206 CLR 267
Weininger v The Queen [2003] HCA 14; 212 CLR 629
Wong v The Queen [2001] HCA 64; 207 CLR 584
Yousif v R [2014] NSWCCA 180
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: CL (Applicant)
Crown (Respondent)
Representation: Counsel:
Applicant (self-represented)
N Adams (Respondent)
Solicitors:
S. Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/7413
Publication restriction: Nil
Decision under appeal

Date of Decision:

2012-04-05 00:00:00

Before:

Williams DCJ

File Number(s):

2009/7413

Judgment

HOEBEN CJ at CL: I agree with Adamson J.

FULLERTON J: I agree with Adamson J.

ADAMSON J: The applicant seeks leave to appeal against the aggregate sentence imposed by Williams DCJ on 5 April 2012 of 7 years and 6 months to date from 29 March 2012 with a non-parole period of 4 years and 6 months. The ratio of the non-parole period to the total aggregate sentence is 60%.

Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge indicated the sentences that would have been imposed but for the imposition of an aggregate sentence. The indicative sentences for each count are set out in the following table.

Count No.
Section of
Offence
Maximum
Penalty
Indicative Sentence (after reduction…

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 CL v R

Details

AGLC: CL v R [2014] NSWCCA 196
Case: [2014] NSWCCA 196
Decision Date: 29 September 2014

CaseChat Overview and Summary

The applicant, CL, appealed against his aggregate sentence imposed following his conviction of various charges related to corrupt conduct while serving as a police officer. The case was heard in the High Court of Australia. CL argued that the sentence was manifestly excessive and did not adequately account for the fact that his criminal activities were intercepted before they could fully unfold. The respondent, R, argued that the sentence was appropriate and that the sentencing judge had considered all relevant factors.

The legal issues before the court were whether the sentence imposed was manifestly excessive and whether the applicant's counsel's consent to tender agreed facts at the sentence hearing bound the applicant. Additionally, the court needed to determine whether the disparity in sentences between CL and his co-offenders was justified, given the different charges laid against them.

The court held that the sentencing judge had considered all relevant factors and that the sentence was not manifestly excessive. The court noted that the fact that CL's criminal conduct was intercepted by diligent policing did not ameliorate his criminality. The court also found that the applicant was bound by his counsel's consent to tender agreed facts at the sentence hearing. The court held that there was no disparity between the sentences of CL and his co-offenders as different charges were laid against them. Therefore, the appeal was dismissed.

The High Court upheld the aggregate sentence imposed on CL and dismissed the appeal. The court held that the sentencing judge had considered all relevant factors and that the sentence was not manifestly excessive. The court also found that CL was bound by his counsel's consent to tender agreed facts at the sentence hearing. The court held that there was no disparity between the sentences of CL and his co-offenders as different charges were laid against them.

Orders