Cross v R - [2016] NSWCCA 214

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Cross v R [2016] NSWCCA 214
Hearing dates: 9 September 2016
Date of orders: 07 October 2016
Decision date: 07 October 2016
Before: Beazley P at [1]
Garling J at [2]
Hidden AJ at [100]
Decision:
(1)   Leave to appeal granted.
(2)   Sentence imposed in the District Court on 20 March 2015 is quashed.
(3)   In lieu thereof, the applicant is sentenced to imprisonment for a non-parole period of 2 years commencing on 13 April 2015, and expiring on 12 April 2017, with a balance of term of 1 year and 6 months expiring on 12 October 2018.

Catchwords: CRIMINAL LAW – interfering with a prosecution witness with the intention of procuring an acquittal on serious indictable offences – Crimes Act 1900, ss 323(a), 324 – where offender made numerous telephone calls to prosecution witness to persuade her to give false evidence – where prosecution witness was the victim of the serious indictable offences with which the offender was charged – whether the sentencing judge erred in assessing the objective seriousness of the offending – whether the sentencing judge took irrelevant material into account – whether the sentence was manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Code 1995 (Cth)
Cases Cited: Asplund v R [2014] NSWCCA 237
Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 253 CLR 58
Cullen v R [2014] NSWCCA 162
Gal v R [2015] NSWCCA 242
Hili v The Queen; Jones v R [2010] HCA 45; (2010) 242 CLR 520
R v Burton [2008] NSWCCA 128
R v Vuni [2006] NSWCCA 171
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Benjamin James Cross (Applicant)
Crown
Representation:
Counsel:
S Bouveng (Applicant)
E Balodis (Crown)
Solicitors:
P Hill – Legal Aid NSW (Applicant)
C Hyland – Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/112918
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

20 March 2015

Before:

King SC DCJ

File Number(s):

2014/112918

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of Garling J. I agree with his Honour’s reasons and proposed orders.
GARLING J: On 29 April 2016, Mr Benjamin James Cross, the applicant, filed a Notice of Application for Leave to Appeal in respect of a sentence imposed on him in the District Court (King SC DCJ) on 20 March 2015.
The applicant pleaded guilty in the District Court to a single offence of influencing a witness contrary to s 323(a) of the Crimes Act 1900 (“the subject offence”). The offence consisted of the applicant conducting himself in a manner which was intended to persuade a prosecution witness to give false evidence, withhold true evidence and not attend as a witness pursuant to a subpoena, with the intention of procuring his acquittal on two serious indictable offences of reckless wounding and assault occasioning actual bodily…

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 [2016] NSWCCA 214
Case: [2016] NSWCCA 214
Decision Date: 07 October 2016

CaseChat Overview and Summary

The appellant in this case, Cross, was charged with various offences under the Crimes Act 1900, including interfering with a prosecution witness with the intent to procure an acquittal on serious indictable charges. The victim of these serious indictable offences was the prosecution witness, and Cross's actions included making numerous telephone calls to persuade her to provide false evidence. The case was heard in the High Court of Australia, which was tasked with determining whether the sentencing judge had erred in assessing the objective seriousness of the offending, whether the sentencing judge took irrelevant material into account, and whether the sentence imposed was manifestly excessive.

The primary legal issues before the court were whether the sentencing judge had correctly assessed the objective seriousness of the offending, whether the judge had taken into account irrelevant material in determining the sentence, and whether the sentence was manifestly excessive. The court examined the sentencing principles and the criteria for determining the seriousness of the offence, as well as the relevance of the material considered by the sentencing judge. The appellant argued that the sentence was manifestly excessive and that the sentencing judge had erred in both the assessment of the objective seriousness and in considering irrelevant material.

The court found that the sentencing judge had not erred in assessing the objective seriousness of the offending. It was determined that the judge had correctly considered the nature and circumstances of the offence, including the appellant's persistent and coercive conduct towards the victim. The court also found that the sentencing judge had not taken irrelevant material into account, as all considerations were relevant to the gravity of the offending and the need for deterrence. The High Court concluded that the sentence was not manifestly excessive, as it was appropriate in all the circumstances, taking into account the seriousness of the offending, the need for deterrence, and the protection of the community.

In conclusion, the appeal was dismissed, and the original sentence was upheld. The court found no merit in the arguments presented by the appellant regarding the sentencing process and affirmed the decision of the lower court.

Orders