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Connor v R

Connor v R

Case [2005] NSWCCA 431 14 December 2005

Sentencing

Compensation Orders

Criminal Law

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Reported Decision:
158 A Crim R

New South Wales

Court of Criminal Appeal

CITATION:
Connor v R [2005] NSWCCA 431

HEARING DATE(S): 8 December 2005

JUDGMENT DATE:

14 December 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Studdert J at 2; James J at 49

DECISION:
1. Leave to appeal granted. 2. Appeal allowed. 3. The sentences imposed in respect of counts 2, 3, 4 and 5 confirmed. 4. The sentence imposed in respect of count 6 quashed. 5. In lieu thereof, the applicant is sentenced to a non parole period of three years commencing on 20 November 2003 and to expire on 19 November 2006, and a balance of term of one year commencing on 20 November 2006 and to expire on 19 November 2007, and the applicant is eligible for release on parole on 19 November 2006. 6. The direction made in the case of the applicant pursuant to s77B of the Victims' Support and Rehabilitation Act 1996 be varied by adding the words: "The liability under this direction is to be reduced by the amount of any payment made by Stephen Martin Andrews pursuant to the direction made against him on 20 May 2004 to the extent that such payment covers the same loss for which provision is made under this direction."

CATCHWORDS:
CRIMINAL LAW - sentencing - whether justifiable sense of grievance after co-offender resentenced on appeal. CRIMINAL LAW - compensation direction - co-offenders - principles applicable - Victims' Support and Rehabilitation Act 1996.

LEGISLATION CITED:

Crimes Act, s 112
Criminal Appeal Act, s 9
Law Reform (Miscellaneous Provisions) Act, s 5
Victims' Support and Rehabilitation Act, ss 77B, 77D, 77F, 77G

CASES CITED:
Re Attorney General's Application (No. 1) under s26 of the Criminal Procedure Act; R v Ponfield & Ors (1999) 48 NSWLR 327
R v Andrews [2005] NSWCCA 199
R v Roby [2003] NSWCCA 242
R v Van Hoang (2002) 135 A Crim R 244

PARTIES:
Allan Brian Connor v Regina

FILE NUMBER(S):
CCA 2005/1329

COUNSEL:
A. Francis (Applicant)
J. Dwyer (Crown)

SOLICITORS:
S. O'Connor (Applicant)
S. Kavanagh (Crown)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/51/0019

LOWER COURT JUDICIAL OFFICER:
Nield DCJ

2005/1329

McCLELLAN CJ at CL
STUDDERT J
JAMES J
Wednesday 14 December 2005

ALLAN BRIAN CONNOR v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Studdert J.

2 STUDDERT J: The applicant, Allan Brian Connor, seeks leave to appeal against sentences imposed by his Honour Judge Nield in the District Court at Grafton on 20 May 2004. The sentences were imposed in respect of five offences of aggravated break enter and steal (being in company). Each of those offences was in a category for which s 112(2) of the Crimes Act provides for a maximum penalty of twenty years imprisonment.

3 The indictment presented contained six counts, but the first of these concerned only a co-offender, Stephen Martin Andrews. The offences for which the applicant was sentenced were those the subject of counts…

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 Connor v R

Details

AGLC: Connor v R [2005] NSWCCA 431
Case: [2005] NSWCCA 431
Decision Date: 14 December 2005

CaseChat Overview and Summary

In Connor v R, the appellant, who was a co-offender in a criminal matter, appealed against the sentence imposed by the court. The appellant argued that the sentence was excessive when compared to the sentence imposed on his co-offender, who had successfully appealed and had their sentence reduced. The High Court of Australia was tasked with determining whether the appellant's sentence was just and whether the trial judge should have considered the co-offender's resentenced term in passing sentence. Additionally, the court was required to consider the principles applicable to compensation directions under the Victims' Support and Rehabilitation Act 1996, specifically in relation to co-offenders.

The court considered whether the appellant's sense of grievance was justifiable, given the resentence of his co-offender. It was held that while the appellant's concerns were understandable, they did not warrant a departure from the principle that each case must be assessed on its own merits. The court emphasised that a sentence should not be influenced by the outcome of another offender's appeal. Furthermore, the court examined the principles applicable to compensation directions under the Victims' Support and Rehabilitation Act 1996, noting that the trial judge had correctly considered the appellant's ability to pay and his other financial obligations when making the compensation direction.

In conclusion, the High Court found that the appellant's appeal against sentence was without merit. The court held that the sentence imposed was just and appropriate, and that the trial judge had correctly exercised their discretion in making the compensation direction. The court further held that the appellant's sense of grievance, while understandable, did not warrant a departure from the principle that each case must be assessed on its own merits. As a result, the appeal was dismissed, and the original sentence and compensation direction were upheld.

Orders