Coleman v Regina - [2009] NSWCCA 7

New South Wales
Court of Criminal Appeal

CITATION: COLEMAN v REGINA [2009] NSWCCA 7

HEARING DATE(S): Friday 21 November 2008

JUDGMENT DATE:
11 February 2009

JUDGMENT OF: Tobias JA at 1; Kirby J at 2; Hall J at 3

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – grounds for interference – whether – disparity in sentences between co-offenders – where objective criminality of co-offender of a higher order – overall sentencing outcome appropriate – consideration of relevant principles – totality – seriousness of offence – where appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: R v Kollas & Mitchell [2002] NSWCCA 491

PARTIES: Tony Keith COLEMAN
v REGINA

FILE NUMBER(S): CCA No 2005/1507

COUNSEL: Crown: Ms N Noman
App: M Dennis

SOLICITORS: Crown: S Kavanagh
App: S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0861

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

LOWER COURT DATE OF DECISION: 18 May 2007

2005/1507

TOBIAS JA
KIRBY J
HALL J
WEDNESDAY 11 FEBRUARY 2009

TONY KEITH COLEMAN v REGINA

Judgment

1 TOBIAS JA: I agree with Hall J.

2 KIRBY J: I agree with Hall J.

3 HALL J: By application for leave to appeal dated 5 August 2008 and filed on 6 August 2008, the applicant seeks leave to appeal against sentences imposed on him by the District Court on 18 May 2007. On that date, he was sentenced for two counts of maliciously damaging property by fire committed respectively on 10 August 1998 and 7 October 1999. The offences were contrary to the provisions of s.195(b) of the Crimes Act 1900.

4 The maximum penalty for an offence under that section at the relevant time was 10 years’ imprisonment. The applicant sought to have a further offence under s.195(b) taken into account on a Form 1.

5 The applicant was sentenced as follows:-

(1) On Count 1, a non-parole period of 12 months to commence on 24 February 2005 and to expire on 23 February 2006 with a total term of three years to commence on 24 February 2005 and to expire on 23 February 2008.

6 The total effective sentence was, accordingly, a term of imprisonment of five years with an effective non-parole period of two and a half years.

7 The applicant relied upon one ground of appeal in the following terms:-

“The sentences imposed upon the applicant are such as to give rise to a justifiable sense of grievance when considered against the sentences imposed upon the applicant’s co-offender and father, Anthony Coleman.”

8 The applicant was almost 19 years of age at the time of…

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 Coleman v Regina

Details

AGLC: Coleman v Regina [2009] NSWCCA 7
Case: [2009] NSWCCA 7
Decision Date: 11 February 2009

CaseChat Overview and Summary

The case of Coleman v Regina involved the appellant, Coleman, who sought to appeal against the sentence imposed by the lower court. The nature of the dispute was the perceived disparity in the sentences handed down to Coleman and his co-offender. Coleman argued that the disparity was unjust given the differences in the roles and objective criminality of each party. The appeal was heard in the court of appeal, where the primary task was to determine whether the appeal against sentence should be allowed.

The legal issues before the court centred on the principles of sentencing and whether the disparity in sentences between co-offenders could justify an appeal. Coleman contended that the sentencing principles, particularly the concepts of totality and the seriousness of the offence, were not adequately considered. The court was required to assess whether the disparity in sentences was justified given the differing levels of objective criminality and culpability of each offender. The court had to balance the need for proportionality in sentencing with the principle of totality, which considers the overall sentencing outcome.

The court found that the sentencing principles were appropriately applied, and the disparity in sentences was justified. It was determined that the objective criminality of the co-offender was of a higher order, and the overall sentencing outcome was appropriate. The court emphasised the importance of considering the totality of the circumstances, including the seriousness of the offence and the respective roles of the offenders. Given this, the appeal was dismissed as there were no grounds for interference with the sentence imposed. The reasoning of the lower court was upheld, and the sentences were deemed appropriate in light of the relevant sentencing principles.

Orders