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Coles v R

Coles v R

Case [2016] NSWCCA 32 7 March 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Coles v R [2016] NSWCCA 32
Hearing dates: 17 February 2016
Decision date: 07 March 2016
Before: Hoeben CJ at CL at [1]
Adams J at [2]
Fullerton J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: Criminal law – appeal against sentence - larceny as bailee, obtain money by deception, fraudulently omit to account – consideration of delay in the sentencing exercise – whether sentencing judge erred in failing to account for delay between investigation and charging of offence
Legislation Cited: Crimes Act 1900 (NSW), ss 117, 125,178A and 178BA
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Cases Cited: Blanco v R [1999] NSWCCA 121; 106 A Crim R 303
McKittrick v R [2014] NSWCCA 128
Mill v R [1988] HCA 70; 166 CLR 59
Pickard v R [2011] SASCFC 134
Sabra v R [2015] NSWCCA 38
Todd v R [1982] 2 NSWLR 517
Category: Principal judgment
Parties: Ronald Coles (Applicant)
The Crown (Respondent)
Representation:
Counsel:
S Pararajasingham (Applicant)
S Dowling SC (Crown)
Solicitors:
S Goold (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/15754
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

2 May 2014

Before:

Townsden DCJ

File Number(s):

2012/15754

JUDGMENT

HOEBEN CJ AT CL: I agree with Fullerton J.
ADAMS J: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal against an aggregate sentence of 8 years and 6 months with a non-parole period of 4 years and 9 months imposed in the District Court on 2 May 2014 following pleas of guilty to fifteen counts laid variously under ss 117, 125,178A and 178BA of the Crimes Act 1900 (NSW) as to which maximum periods of imprisonment of between 5 years and 7 years are provided.
In January 2012, after a three year police investigation, the applicant was arrested and charged with a significantly greater number of offences than those for which he was sentenced. On 8 November 2012 he was committed for trial in respect of 30 offences with a further 74 offences the subject of a s 166 certificate.
On 22 August 2013, within a short time of the trial date, the applicant entered pleas of guilty to 15 counts on indictment and asked the sentencing judge to take into account a further 18 offences on two separate Forms 1.
In nominating an indicative sentence for each of the 15 counts, the sentencing judge allowed a discount of 15 per cent for the late pleas of guilty. A finding of special circumstances based on the applicant’s age (he was 66 at the time of sentence) and what was found to be reasonable prospects that he would not reoffend, resulted in a significant alteration to the statutory ratio specified in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The sole ground of appeal

The applicant contends that the sentencing judge’s failure…

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 Coles v R

Details

AGLC: Coles v R [2016] NSWCCA 32
Case: [2016] NSWCCA 32
Decision Date: 07 March 2016

CaseChat Overview and Summary

Coles, the appellant, was convicted of larceny as a bailee, obtaining money by deception, and fraudulently omitting to account. The respondent, the Crown, brought an appeal against the sentence imposed by the court. The case was heard in the High Court of Australia, which is the highest court in Australia and has the final say on legal matters. The appeal centred on the sentence and whether the sentencing judge should have taken into account the significant delay between the investigation and the charging of the offence.

The court had to determine whether the sentencing judge was required to consider the delay in the sentencing exercise. The appellant argued that the delay had a direct impact on the sentence imposed, while the respondent contended that the delay did not affect the sentence. The court was tasked with examining the relevant legal principles and applying them to the facts of the case.

The court held that the sentencing judge did not err in failing to account for the delay between the investigation and the charging of the offence. The court found that there was no legal requirement for the sentencing judge to consider the delay in the sentencing exercise. The court emphasised that the delay did not have a significant impact on the sentence imposed, as the judge had considered other relevant factors, such as the appellant's previous convictions, in determining the appropriate sentence. The court ultimately dismissed the appeal and upheld the original sentence imposed by the lower court.

The High Court of Australia dismissed the appeal, finding that the sentencing judge did not err in failing to consider the delay between the investigation and the charging of the offence. The court upheld the original sentence imposed by the lower court, and no further orders were made.

Orders