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Cross v R

Cross v R

Case [2019] NSWCCA 280 25 November 2019

Sentencing

Appeal

Community Safety

Intensive Correction Order

Mental Health

Judicial Review

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cross v R [2019] NSWCCA 280
Hearing dates: 11 October 2019
Date of orders: 25 November 2019
Decision date: 25 November 2019
Before: Gleeson JA at [1]
Johnson J at [2]
Cavanagh J at [4]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords: Crime — appeals — appeal against sentence — application for leave to appeal — two counts of aggravated kidnapping in company contrary to s 86(2)(a) of the Crimes Act 1900 (NSW) — whether sentencing judge failed to have regard to community safety as paramount consideration in accordance with s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in considering whether to make an Intensive Correction Order — where s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) precluded the making of an Intensive Correction Order — whether sentencing judge misapplied the principle of parity — whether sentencing judge failed to properly account for applicant's mental health — whether sentencing judge failed to give adequate reasons
Legislation Cited: Crimes Act 1900 (NSW), s 86(2)(a)
Criminal Appeal Act 1912 (NSW), s 6(3)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 66, 68, 69
Cases Cited: Karout v R [2019] NSWCCA 253
Lago v R [2015] NSWCCA 296
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Ng v R [2011] NSWCCA 227; 214 A Crim R 191
R v Connell [2013] NSWCCA 155
R v Fangaloka [2019] NSWCCA 173
R v Gommeson [2014] NSWCCA 159; 243 A Crim R 534
R v Montesinos [2002] NSWCCA 470; 135 A Crim R 417
R v Nguyen [2010] NSWCCA 331
R v Pullen [2018] NSWCCA 264
Category: Principal judgment
Parties: Susan Lynette Cross (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Brock (Applicant)
E Balodis (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/178082
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

20 February 2019

Before:

Tupman DCJ

File Number(s):

2017/178082

Judgment

GLEESON JA: I agree with Cavanagh J.
JOHNSON J: I agree with the orders proposed by Cavanagh J and with his Honour’s reasons for those orders.
The sentencing Judge was correct in her conclusion that the objective gravity of these offences was such that an intensive correction order was not appropriate and that a sentence of full-time imprisonment was necessary in this case. I note that this conclusion is consistent with the decisions of this Court in R v Fangaloka [2019] NSWCCA 173 at [60]–[61] and Karout v R [2019] NSWCCA 253 at [2] and [86]–[91].
CAVANAGH J: By notice of application for leave to appeal filed on 26 July 2019 the applicant, Susan Lynette Cross, seeks leave to appeal from a sentence imposed by the District Court of New South Wales at Sydney on 20 February 2019 with respect to two counts of aggravated kidnapping in company, contrary to s 86(2)(a) of…

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 Cross v R

Details

AGLC: Cross v R [2019] NSWCCA 280
Case: [2019] NSWCCA 280
Decision Date: 25 November 2019

CaseChat Overview and Summary

In the case of Cross v R, the applicant sought leave to appeal against his sentence for two counts of aggravated kidnapping in company. The application was heard in the New South Wales Court of Criminal Appeal. The applicant argued that the sentencing judge failed to properly consider community safety and the principles of parity and parity of punishment, as well as his mental health, in determining whether to impose an Intensive Correction Order (ICO). The applicant also contended that the sentencing judge did not provide adequate reasons for the sentence imposed.

The legal issues before the court were whether the sentencing judge failed to consider community safety as the paramount consideration, whether the sentencing judge misapplied the principle of parity, and whether the sentencing judge failed to properly account for the applicant's mental health. Additionally, the court needed to determine if the sentencing judge provided adequate reasons for the sentence imposed.

The court found that the sentencing judge did not adequately consider the principle of parity in relation to the imposition of an ICO. The court held that the sentencing judge had failed to properly consider the principle of parity because the judge did not take into account the fact that the applicant had already been sentenced to an ICO for another offence. The court also found that the sentencing judge did not properly account for the applicant's mental health, as the judge did not consider the impact of the applicant's mental health on his capacity to participate in an ICO. Finally, the court held that the sentencing judge did not provide adequate reasons for the sentence imposed, as the reasons were not sufficiently detailed and did not address all the relevant factors.

The court granted leave to appeal against the sentence and remitted the matter to the sentencing judge for re-sentencing. The court emphasised the importance of considering community safety as the paramount consideration and ensuring that the sentencing judge properly accounts for the applicant's mental health and applies the principle of parity in relation to the imposition of an ICO. The court also highlighted the need for the sentencing judge to provide adequate reasons for the sentence imposed.

Orders