Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Cummins v R [2019] NSWCCA 163 Hearing dates: 19 June 2019 Date of orders: 22 July 2019 Decision date: 22 July 2019 Before: Bathurst CJ at [1];
Price J [2];
N Adams J [122]Decision: (1) Leave to appeal granted.
(2) Appeal against sentence allowed.
(3) The sentence imposed in the District Court of New South Wales on 29 June 2018 is quashed.
(4) In lieu thereof, Paul James Cummins is sentenced to 11 years 6 months imprisonment consisting of a non-parole period of 6 years 6 months, commencing on 30 April 2017 and concluding on 29 October 2023, with a balance of term of 5 years which will expire on 29 October 2028.Catchwords: CRIME – Appeals – Appeal against sentence – two armed robberies – report by sentencing judge to the Court of Criminal Appeal – circumstances where report may be made – report not considered by the Court – whether judge erred in taking into account Form 1 offences when assessing the objective seriousness of principal offences – whether error in taking into account multiple victims and series of criminal acts – whether error in taking into account threat of violence – whether error in application of principle of totality – Re-sentence – consideration of guideline judgment in R v Henry – consideration of whether applicant’s mental health reduced moral culpability for offences – whether applicant remorseful – applicant serving balance of parole – indicative sentences – aggregate sentence imposed – commencement date of aggregate sentence Legislation Cited: Crimes Act 1900 (NSW) ss 97, 154A, 154C
Crimes (Sentencing) Procedure Act 1999 (NSW) s 21A
Criminal Appeal Act 1912 (NSW) s 11Cases Cited: 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
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Dougan v R [2006] NSWCCA 34; (2006) 160 A Crim R 135
Hamze v R [2006] NSWCCA 36
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hutchen v R [2015] NSWCCA 101
Ith v R [2013] NSWCCA 280
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Franks [2005] NSWCCA 196
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v M.A.K, M.S.K [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
R v Sloane [2001] NSWCCA 421; (2001) 126 A Crim R 188
R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
R v XX [2009] NSWCCA…
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- AGLC
- Cummins v The Queen [2019] NSWCCA 163
- Case
- [2019] NSWCCA 163
- Decision Date
CaseChat Overview and Summary
The High Court examined the legal principles governing the circumstances under which a report by a sentencing judge to the Court of Criminal Appeal should be considered. The court concluded that the report in this case should not have been considered by the Court of Criminal Appeal as it was not made in the circumstances prescribed by statute. The Court further considered whether the sentencing judge erred in taking into account the Form 1 offences when assessing the objective seriousness of the principal offences, as well as the multiple victims, series of criminal acts, and threat of violence. The Court held that no error was made in these respects. The Court also considered the application of the principle of totality and concluded that the sentence imposed was appropriate in all the circumstances.
The High Court proceeded to re-sentence Cummins, taking into account the guideline judgment in R v Henry. The Court also considered whether Cummins' mental health reduced his moral culpability for the offences, whether he was remorseful, and the fact that he was serving the balance of his parole. After considering the indicative sentences and the aggregate sentence imposed, the Court determined that the commencement date of the aggregate sentence should be the date of the original sentencing. The Court ultimately upheld the sentence imposed by the sentencing judge, with the modification that the commencement date of the aggregate sentence should be the date of the original sentencing.
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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