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Convery v R

Convery v R

Case [2014] NSWCCA 93 27 May 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Convery v R [2014] NSWCCA 93
Hearing dates: 27 May 2014
Decision date: 27 May 2014
Before: Simpson J at [1]
Adams J at [2]
McCallum J at [5]
Decision:
Leave to appeal granted; appeal allowed; sentence imposed at first instance for the offence of assaulting a police officer occasioning actual bodily harm quashed and in lieu thereof applicant sentenced to a term of imprisonment with a non-parole period of twenty months commencing on 1 October 2012 and expiring on 31 May 2014 and a balance of term of thirty months expiring on 30 November 2016.

Catchwords: CRIMINAL APPEAL - sentence appeal -where pleas of guilty entered at earliest opportunity - sentencing judge's remarks on sentence silent as to plea or discount - length of head sentence revealing discount must have been miscalculated, not allowed or overlooked - Crown conceding appeal should be allowed
Legislation Cited: Crimes Act 1900, s 60(2)
Crimes (Sentencing Procedure) Act 1999, s 54A
Cases Cited: Collier v R [2012] NSWCCA 213
R v Thomson; R v Houlton [2000] 49 NSWCCA 309; (2000) 49 NSWLR 383
Texts Cited: Judge Peter Berman SC, 'The Art of Sentencing' (Paper presented at Local Court Annual Conference, 2013)
Category: Principal judgment
Parties: Amanda Convery (applicant)
Regina (respondent)
Representation: Counsel:
H Cox (applicant)
J Girdham SC (Crown)
Solicitors:
Aboriginal Legal Services Ltd (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2012/102298
Publication restriction: None
Decision under appeal

Date of Decision:

2013-02-28 00:00:00

Before:

Berman DCJ

File Number(s):

2012/102298

Judgment

SIMPSON J: I agreed with the orders of the Court for the reasons stated by McCallum J.

ADAMS J: I agreed with the orders of the Court for the reasons set out in the judgment of McCallum J. I wish, however, to add the following remarks. This case presents, in a stark way, a conundrum with which sentencing judges have to deal in many cases where an offender has serious mental problems of one kind or another and causes serious injury to the victim. Often that injury is the more serious because of the irrational judgment and lack of self control of the offender. Here, the victim was a police officer who was attacked by the offender because she was doing her duty, making the offence even more serious. The applicant had stopped taking her medication and her symptoms were exacerbated, perhaps induced, by methylamphetamine and alcohol. Her addiction to drugs commenced in early childhood, as shown in the history set out by McCallum J. In light of her long-standing schizophrenia and damaged intellect (her overall intellectual functioning was in the Very Low range, at a level less than 1 per cent of her peers), it is not reasonable to treat her taking of drugs as though, despite her addiction, she was making a real choice about it.

In the end, it must be moral culpability that determines the correct level of punishment. Of course this necessarily involves the commission…

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 Convery v R

Details

AGLC: Convery v R [2014] NSWCCA 93
Case: [2014] NSWCCA 93
Decision Date: 27 May 2014

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the respondent, the Crown, in the matter of Convery v R. The appellant, Convery, had pleaded guilty at the earliest opportunity to charges of trafficking in a commercial quantity of a border-controlled drug. The court was asked to determine whether the sentencing judge had appropriately applied a discount to the appellant's sentence due to his early guilty plea. The Crown conceded that the sentence was manifestly inadequate and that the appeal should be allowed.

The central legal issue was whether the sentencing judge had overlooked or miscalculated the discount that should have been applied to the appellant's sentence due to his early guilty plea. The appellant argued that the sentencing judge's failure to mention the plea or the discount in his remarks on sentence indicated that the discount was not properly applied. The Crown, on the other hand, submitted that the judge had indeed considered the plea and applied a discount, but that the length of the head sentence revealed that the discount must have been miscalculated. The court was required to decide whether the sentence was manifestly inadequate and whether the appeal should be allowed as a result.

The court found that the sentencing judge's failure to mention the plea or the discount in his remarks on sentence suggested that the discount was not properly applied. The length of the head sentence also indicated that the discount must have been miscalculated. The court held that the sentence was manifestly inadequate and that the appeal should be allowed. The Crown conceded that this was the correct outcome and that the sentence should be set aside and the matter remitted for resentencing. The court agreed with the Crown's concession and allowed the appeal.

The final orders of the court were that the appeal against sentence be allowed, that the sentence be set aside, and that the matter be remitted for resentencing. The court emphasised the importance of ensuring that any discount for an early guilty plea is properly applied and that the sentencing judge's remarks on sentence clearly indicate the application of such a discount. The court also noted that the Crown's concession that the appeal should be allowed demonstrated a commitment to ensuring that sentences are just and appropriate in all cases.

Orders