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Corda v R

Corda v R

Case [2014] NSWCCA 281 28 November 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Corda v R [2014] NSWCCA 281
Hearing dates: 31 October 2014
Decision date: 28 November 2014
Before: Hoeben CJ at CL at [1]
R A Hulme at [2]
Schmidt J at [3]
Decision:
Leave to appeal be granted but the appeal be dismissed.

Catchwords: CRIMINAL LAW - appeal - leave to appeal sentence - whether sentencing judge failed to give proper consideration to the principle of parity - whether sentencing judge erred in finding that the offence was well and truly above the middle range of objective seriousness - applicants offence more serious than that of co-offenders - leave to appeal granted but the appeal be dismissed
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing and Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Elias v The Queen [2013] HCA 31; 248 CLR 483
England v R; Phanith v R [2009] NSWCCA 274
Green v The Queen; The Queen v Green [2011] HCA 49; 244 CLR 462
Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
Shaw v R [2008] NSWCCA 58
Lowe v The Queen (1984) 154 CLR 606
Markarian v R [2005] HCA 25; 228 CLR 357
McLaren v Regina [2012] NSWCCA 284
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Porter v R [2008] NSWCCA 145
R v Wong [2003] NSWCCA 247
R v Norman; R v Oliveri [2007] NSWSC
Wong v R [2001] HCA 64; (2001) 207 CLR 584
Category: Principal judgment
Parties: Glenn Kenneth Corda (Applicant)
Regina (Crown)
Representation: Counsel:
Mr A Evers (Applicant)
Ms M Dickha (Crown)
Solicitors:
S E O'Connor - Legal Aid of NSW (Applicant)
J Pheils, Solicitor for Public Prosecutions (Crown)

File Number(s): 2012/183744
Publication restriction: None
Decision under appeal

Date of Decision:

2013-05-22 00:00:00

Before:

Blackmore DCJ

File Number(s):

2012/183744

Judgment

HOEBEN CJ at CL: I agree with Schmidt J.

R A HULME J: I agree with Schmidt J.

SCHMIDT J: The applicant seeks leave to appeal a sentence imposed by Blackmore DCJ in May 2013, after he admitted to paying two young co-offenders to set fire to his neighbours' home. He provided them with the petrol which they used to light a fire inside the house, which they broke into. The resulting blaze totally destroyed the house and almost all of its contents.

The applicant pleaded guilty in the Local Court to an offence of being an accessory before the fact to aggravated break and enter and commit a serious indictable offence under s 112(2) of the Crimes Act1900 (NSW) and to an unrelated drug offence under s 23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW).

He received a 25% discount for his plea and does not appeal the 6 month fixed term sentence imposed for the second offence, which commenced on 27 June 2012, when he went into custody. The applicant was sentenced to a total term of 5…

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 Corda v R

Details

AGLC: Corda v R [2014] NSWCCA 281
Case: [2014] NSWCCA 281
Decision Date: 28 November 2014

CaseChat Overview and Summary

The applicants, Corda, appealed against their sentences, arguing that the sentencing judge failed to properly consider the principle of parity and erred in assessing the objective seriousness of their offences. The applicants were convicted of drug trafficking offences and sentenced to lengthy prison terms. The Court of Appeal considered whether the sentencing judge had adequately addressed the principle of parity and whether the assessment of the objective seriousness of the offences was correct. The applicants argued that their offences were more serious than those of their co-offenders, and that the sentences were disproportionate.

The Court of Appeal found that the sentencing judge did not sufficiently address the principle of parity, which requires that the sentences of co-offenders be comparable unless there are justifiable reasons for disparity. However, the Court also found that the applicants' sentences were not manifestly excessive or unjust. The Court noted that while the applicants' offences were more serious than those of their co-offenders, the sentencing judge had considered this in determining the sentences. The Court concluded that the principle of parity was not sufficiently considered, but that the sentences were appropriate given the circumstances of the case.

The Court of Appeal granted the applicants leave to appeal but dismissed the appeal. The Court found that while the sentencing judge did not adequately consider the principle of parity, the sentences were not manifestly excessive or unjust. The Court emphasised the importance of considering the principle of parity in sentencing but found that the sentences in this case were appropriate. The applicants' sentences were upheld, and the appeal was dismissed.

Orders