McClellan CJ at CL at [1] R A Hulme J at [51] Schmidt J at [63]
Decision:
1. Grant leave to appeal.
2. Uphold the appeal and quash the sentence imposed in the District Court.
3. In relation to count 2 sentence the applicant to a non-parole period of 9 years commencing on 23 August 2008 and expiring on 22 August 2017 with an additional term of 3 years expiring on 22 August 2020.
4.In relation to count 1 and having regard to the matter on the Form 1 sentence the applicant to a non-parole period of 10 years and 6 months commencing on 23 August 2011 and expiring on 22 February 2022 with an additional term of 4 years and 6 months expiring on 22 August 2026.
The aggregate non-parole period is accordingly 13 years and 6 months with an additional term of 4 years and 6 months.
Catchwords:
CRIMINAL LAW - appeal - sentence - where sentencing judge failed to impose a non-parole period in respect of count 1 - whether sentencing judge erred in consideration of the standard non-parole period - where sentencing judge had regard to the standard non-parole period as one of the matters to be considered - whether sentencing judge breached the rule in Pearce v R (1998) 194 CLR 610 - where sentencing judge first determined overall appropriate sentence before determining sentence for each count - Rule in Pearce v R breached - whether sentence is manifestly excessive - applicant resentenced - lesser sentence imposed.
Counsel: I McLachlan (Applicant) E Balodis (Crown) Solicitors: Michael Croke & Co (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):
2009/6354
Decision…
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 Collier v R
Sign in free to access the full text
Details
AGLC
Collier v R [2012] NSWCCA 213
Case
[2012] NSWCCA 213
Decision Date
CaseChat Overview and Summary
In the case of Collier v R, the appellant, Collier, appealed against his sentence, claiming that the primary judge erred in the imposition of the sentence. The respondent, R, is the Crown. The High Court of Australia considered this appeal. The central issue in this case was whether the primary judge erred in failing to impose a non-parole period in respect of count 1 of the sentence. Furthermore, it was debated whether the primary judge breached the rule in Pearce v R by first determining the overall appropriate sentence before determining the sentence for each count.
The High Court found that the primary judge did indeed breach the rule in Pearce v R by first determining the overall appropriate sentence before determining the sentence for each count. However, the Court also found that this breach did not necessarily mean that the sentence was manifestly excessive. The Court resentenced Collier, imposing a lesser sentence, and found that the original sentence was not manifestly excessive. The Court held that the error in the sentencing process did not lead to an outcome that was significantly disproportionate to the offence committed.
The Court's decision was that the breach of the Pearce v R rule did not render the sentence manifestly excessive, and therefore, the sentence was not invalid. The Court resentenced Collier and imposed a lesser sentence. This ruling serves as a reminder to sentencing judges to follow the correct process in sentencing, but also acknowledges that minor errors in the sentencing process may not necessarily result in an invalid sentence if the overall outcome is not manifestly excessive.