Courtney v The The King - [2022] NSWCCA 223

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Courtney v R [2022] NSWCCA 223
Hearing dates: 8 June 2022
Date of orders: 14 October 2022
Decision date: 14 October 2022
Before: Meagher JA at [1]
Mitchelmore JA at [8]
Bellew J at [18]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Where applicant pleaded guilty to using an offensive weapon to avoid lawful apprehension or detention – Whether the sentencing judge erred in finding that the offending was aggravated by the fact that victims were police officers – Whether that finding reflected double counting – Whether the legislature specifically intended to protect police in enacting the statutory provision pursuant to which the applicant was charged – Where a number of other legislative provisions conferred a power of arrest on persons other than police – No error established
CRIMINAL LAW – Offences – Sentence – Where applicant pleaded guilty to using an offensive weapon to avoid lawful apprehension or detention – Where applicant asked the sentencing judge to take into account an additional matter on a Form 1 of taking and driving a conveyance without consent – Where further matter of driving whilst disqualified contained in a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) – Whether sentencing judge erred by taking into account the Form 1 offence when assessing the objective seriousness of the offence of driving whilst disqualified to which the Form 1 did not attach – Error established leading to the necessity to re-sentence – Serious offending requiring a strong element of general deterrence – Guarded prospects of rehabilitation dependent upon the applicant addressing his drug addiction – No lesser sentence warranted in law – Leave to appeal granted – Appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Customs Act 1901 (Cth)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Migration Act 1958 (Cth)
Road Transport Act 2013 (NSW)

Cases Cited:
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
Aloniu v R [2017] NSWCCA 74
Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Cotter v R [2020] NSWCCA 299
Currie v R [2013] NSWCCA 267
Elyard v R [2006] NSWCCA 43
Mansour v R [2011] NSWCCA 28
Mulato v R [2006] NSWCCA 282
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Bazzi [1999] NSWCCA 346
R v Hamilton (1993) 66 A Crim R 575
R v Perez Court of Criminal Appeal (NSW) 11 December 1991 (unreported)
R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
R v Yildiz [2006] NSWCCA 97
Sharpe v R [2006] NSWCCA 255
Trejos v R [2017] NSWCCA 122

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

Case: [2022] NSWCCA 223
Decision Date: 14 October 2022

CaseChat Overview and Summary

The applicant in Courtney v The King pleaded guilty to using an offensive weapon to avoid lawful apprehension or detention, which led to a dispute over the sentencing process and the applicability of aggravating factors. The case was heard in the court of appeal, where the applicant contested the sentencing judge's determination that the offence was aggravated because the victims were police officers. The applicant argued that this finding amounted to double counting since other legislative provisions conferred arrest powers on non-police personnel, implying the legislature did not specifically intend to protect police officers in enacting the relevant statutory provision.

The court examined whether the sentencing judge erred in considering the victims' roles as police officers as an aggravating factor. The court found that no error was established, as the legislature did not explicitly intend to protect police officers alone. The court also assessed whether the sentencing judge made an error by considering an additional offence—taking and driving a conveyance without consent—when assessing the objective seriousness of the offence of driving while disqualified, which was not attached to the Form 1. The court determined that this constituted an error, necessitating a re-sentencing.

The court considered the objective seriousness of the offence, the need for general deterrence, and the applicant's prospects for rehabilitation, particularly regarding his drug addiction. The court concluded that the original sentence was appropriate, taking into account the gravity of the offences and the need for deterrence. The appeal was dismissed, and leave to appeal was granted.

Orders