Simpson AJA at [1]; Garling J at [2]; N Adams J at [3].
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords:
CRIME — Appeals — Appeal against sentence – offences of dishonestly obtain financial advantage, breach of bail undertaking, give false evidence at public inquiry – whether sentencing judge erred in assessment of objective seriousness of the offences – where sentencing judge stated that the findings of objective seriousness were arrived at after taking into account mitigating factors including plea of guilty – where subjective factors were subsequently considered – held, remarks read as a whole indicate that subjective factors were taken into account after findings of objective seriousness – whether sentencing judge erred in failing to take into account possibility of summary disposition in respect of count 1 – argument not raised below – where applicant was sentenced for multiple offences that occurred over several years including a fraud of over $1m – not necessary to consider hypothetical situation in which count 1 was dealt with in isolation – whether aggregate sentence manifestly excessive – where indicative sentence on count 1 high – principle of totality – no error disclosed in aggregate sentence – appeal dismissed
Counsel: K Averre (Applicant) E Wilkins SC (Respondent)
Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2017/48178
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
13 November 2019
Before:
Syme DCJ
File Number(s):
2017/48178
Judgment
SIMPSON AJA: I agree with N Adams J.
GARLING J: I agree with the orders proposed…
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.
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Details
AGLC
Cordoba v The Queen [2021] NSWCCA 144
Case
[2021] NSWCCA 144
Decision Date
CaseChat Overview and Summary
The appellant, Cordoba, appealed against the sentence imposed by the sentencing judge following his conviction for various offences. The respondent, The Queen, was the party defending the appeal. The nature of the dispute centred around the sentence handed down by the sentencing judge for the offences of obtaining financial advantage by deception, breaching bail conditions, and providing false evidence at a public inquiry. The case was heard by the court of appeal.
The primary legal issues before the court were whether the sentencing judge erred in assessing the objective seriousness of the offences and whether the judge failed to consider the possibility of a summary disposition in respect of one of the counts. The court also considered whether the aggregate sentence was manifestly excessive.
The court found that the sentencing judge's remarks, when read as a whole, indicated that subjective factors were taken into account after determining the objective seriousness of the offences. The court also held that the argument regarding the possibility of summary disposition in respect of one count was not raised below and thus could not be considered. The court determined that it was unnecessary to consider a hypothetical situation where the first count was dealt with in isolation. Regarding the aggregate sentence, the court found no error in the application of the principle of totality, given the high indicative sentence for the first count and the multiple offences committed over several years, including a fraud of over $1 million.
The appeal was dismissed, with the court finding that no errors were disclosed in the sentence imposed by the sentencing judge.