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Cowan v R

Cowan v R

Case [2015] NSWCCA 118 29 May 2015

Criminal Liability

Sentencing

Criminal Law

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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 10
Category: Principal judgment
Parties: Glen Eric Cowan - Applicant
Crown - Respondent
Representation:
Counsel:
Ms H Cox - Applicant
Mr P Ingram SC – Respondent
Solicitors:
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

BATHURST CJ: In this matter, I have had the advantage of reading the judgments of Simpson J and Bellew J in draft.
I agree with the orders proposed by Bellew J and, subject to what I have written below, with his Honour’s reasons.
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…

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 Cowan v R

Details

AGLC: Cowan v R [2015] NSWCCA 118
Case: [2015] NSWCCA 118
Decision Date: 29 May 2015

CaseChat Overview and Summary

The case of Cowan v R involved an applicant who pleaded guilty to charges of aggravated break and enter and commit a serious indictable offence (larceny). The offence took the form of a "ram raid," a type of break-in where a vehicle is driven through a wall or door to gain entry. The sentencing judge was presented with evidence that the applicant had a mental disability. Despite this, no submissions were made to the court regarding the principles that should apply when sentencing mentally ill offenders. The sentencing judge delivered remarks ex tempore, without reference to these principles, which led to the applicant seeking leave to appeal.

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