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Cummins v The Queen

Cummins v The Queen

Case [2019] NSWCCA 163 22 July 2019

Appeal

Sentencing

Mens Rea & Intention

Aggravated & Exemplary Damages

Judicial Review

Criminal Law

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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 11
Cases 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…

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 Cummins v The Queen

Details

AGLC: Cummins v The Queen [2019] NSWCCA 163
Case: [2019] NSWCCA 163
Decision Date: 22 July 2019

CaseChat Overview and Summary

The appeal involved Cummins, who sought to challenge the sentence imposed on him for two armed robberies. The case was heard in the High Court of Australia. Cummins had been sentenced by a judge in the Supreme Court, and the sentencing judge had provided a report to the Court of Criminal Appeal. The primary issue for the High Court was whether the sentencing judge erred in various respects when assessing the seriousness of Cummins' principal offences. The court also considered whether the judge had made an error in taking into account multiple victims and a series of criminal acts, the threat of violence, and the principle of totality.

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