Courtney v The The King

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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

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Details
Case
[2022] NSWCCA 223
Decision Date

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.

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Decision

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