Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Cowan v R [2015] NSWCCA 118 Hearing dates: 29 April 2015 Date of orders: 29 May 2015 Decision date: 29 May 2015 Before: Bathurst CJ at [1]
Simpson J at [4]
Bellew J at [9]Decision: Leave to appeal is granted.
The appeal is allowed.
The sentence imposed upon the applicant in the District Court is quashed.
In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 10 months imprisonment commencing on 3 September 2013 and expiring on 2 July 2015 with a balance of term of 1 year and 2 months imprisonment commencing on 3 July 2015 and expiring on 2 September 2016.Catchwords: CRIMINAL LAW – sentence – where applicant pleaded guilty to an offence of aggravated break and enter and commit a serious indictable offence (larceny) – offending in the nature of a “ram raid” – evidence before the sentencing judge that the applicant had a mental disability – no submissions made to the sentencing judge regarding the principles applicable to the sentencing of mentally ill offenders – sentencing judge delivered ex tempore remarks without making reference to such principles – obligation on the part of the sentencing judge to consider that issue notwithstanding the absence of submissions made to him – error established Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)Cases Cited: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
Bugmy v R [2013] HCA 37; (2013) 249 CLR 571
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
Elturk v R [2014] NSWCCA 61
Gommesen v R [2012] NSWCCA 226
Kentwell v R [2014] HCA 37; (2014) 88 ALJR 947
McLaren v R [2012] NSWCCA 284
Martin v R [2015] NSWCCA 6
R v Campbell [2014] NSWCCA 102
R v Fernando (1992) 76 A Crim R 58
R v Tuuta [2014] NSWCCA 40
Warner aka Jeremy Pachenko v R [2013] NSWCCA 10Category: Principal judgment Parties: Glen Eric Cowan - Applicant
Crown - RespondentRepresentation: Counsel:
Solicitors:
Ms H Cox - Applicant
Mr P Ingram SC – Respondent
C O’Neil, Aboriginal Legal Service - Applicant
Solicitor for Public Prosecutions – Respondent
File Number(s): 2013/267517 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Before:
- Acting Judge Black
Judgment
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BATHURST CJ: In this matter, I have had the advantage of reading the judgments of Simpson J and Bellew J in draft.
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I agree with the orders proposed by Bellew J and, subject to what I have written below, with his Honour’s reasons.
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For the reasons given by Simpson J, I have some doubt whether the sentencing judge properly took into account the applicant’s youth in imposing the sentence. However, having regard to the applicant’s success on the other grounds of appeal, it is unnecessary to pursue the…
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- AGLC
- Cowan v R [2015] NSWCCA 118
- Case
- [2015] NSWCCA 118
- Decision Date
CaseChat Overview and Summary
The legal issues in this case centred on the sentencing judge's failure to consider the principles applicable to the sentencing of mentally ill offenders, despite evidence of the applicant's disability. The court was required to determine whether the sentencing judge's omission constituted an error and whether this error was significant enough to warrant an appeal. The applicant argued that the error was fundamental, as it pertained to a critical aspect of the sentencing process that could impact the fairness and appropriateness of the sentence.
The court found that the sentencing judge did indeed have an obligation to consider the principles applicable to the sentencing of mentally ill offenders, even in the absence of specific submissions from the parties. The error in not doing so was significant, as it could affect the outcome of the sentencing. The court concluded that the error established was one that warranted the grant of leave to appeal. The decision underscores the importance of the sentencing judge considering all relevant factors, including the mental health of the offender, when determining an appropriate sentence.
The final orders of the court included granting the applicant leave to appeal and setting aside the sentence imposed by the sentencing judge. The case was remitted back to the sentencing judge for reconsideration in light of the court's findings. This outcome highlights the critical need for sentencing judges to thoroughly consider all aspects of an offender's circumstances, including mental health, to ensure that the sentence is just and appropriate.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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