Curtis v The Queen - [2008] NSWCCA 200

New South Wales
Court of Criminal Appeal

CITATION: Curtis v R [2008] NSWCCA 200

HEARING DATE(S): Monday 2nd June 2008

JUDGMENT DATE:
29 August 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 2; Hidden J at 3

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - break, enter and steal (4) - pleas of guilty - various criticisms of remarks on sentence not made out - no question of principle

CASES CITED: R v Henry [1999] 46 NSWLR 346

PARTIES: Matthew Curtis (applicant)
Regina (respondent)

FILE NUMBER(S): CCA 2007/2912

COUNSEL: P White (applicant)
J Dwyer (Crown)

SOLICITORS: Patricia White & Associates (applicant)
Solicitor for Public Prosecutions (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/71/0088

LOWER COURT JUDICIAL OFFICER: S Norrish QC DCJ

LOWER COURT DATE OF DECISION: 23/03/07

2007/2912
McCLELLAN CJ at CL
HULME J
HIDDEN J
Friday 29th August 2008

Matthew Robert Curtis v Regina

Judgment

1 McCLELLAN CJ at CL: I agree with Hidden J.

2 HULME J: I agree with Hidden J.

3 HIDDEN J: The applicant, Matthew Robert Curtis, pleaded guilty in the District Court to four counts of break, enter and steal. On the first count, he was sentenced to imprisonment for a fixed term of 18 months. On each of the second and third counts, he was sentenced to concurrent fixed terms of 2 years and 3 months, which were also concurrent with the sentence on the first count. On the fourth count, he was sentenced to imprisonment for 3 years and 9 months, comprising a non-parole period of 1 year and 9 months and a balance of term of 2 years, which was accumulated upon the other sentences by one year. The aggregate sentence, then, was imprisonment for 4 years and 9 months with an effective non-parole period of 2 years and 9 months. He seeks leave to appeal against those sentences.

4 The offences were committed at private homes in Young over a period of about ten days in May 2006. Each of the homes was readily accessible, and the applicant stole a variety of items, comprising money, jewellery, a video recorder and a Playstation. However, from the home the subject of the fourth count he also stole two rifles and a shotgun, which he later disposed of. It was the theft and disposal of those firearms which led the sentencing judge to pass the heaviest sentence on that count. He committed the offences to fund his addiction to a pain-killing drug, oxycontin, which he was buying illegally.

5 The applicant was thirty-one years old at the time of the offences, and is now thirty-three. He has a bad criminal record, including a number of previous convictions for break, enter and steal. He was extended leniency for those offences in earlier years, but subsequently served terms of imprisonment for several of them. Some of the offences on his record were committed while…

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.

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Details

Case: [2008] NSWCCA 200
Decision Date: 29 August 2008

CaseChat Overview and Summary

The case of Curtis v The Queen involved the appellant who had pleaded guilty to multiple charges, including breaking and entering and stealing. The appellant applied for leave to appeal against the sentence imposed by the lower court. The primary focus of the appeal was the sentence itself, with the appellant taking issue with certain remarks made by the sentencing judge during the sentencing process.

The legal issues that arose in this case concerned the fairness and propriety of the sentencing remarks. The appellant argued that the judge's comments may have influenced the final sentence and that these criticisms warranted a review. Specifically, the appellant contended that the remarks amounted to an error of principle that warranted appellate intervention.

The court examined the sentencing remarks carefully and found no basis for the appellant's contentions. It was held that the judge's comments were within the bounds of appropriate judicial discretion and did not constitute an error of principle. The court further found that the criticisms of the remarks were not substantiated, and therefore, the appeal against sentence was dismissed. The court concluded that there was no miscarriage of justice or procedural unfairness that would warrant an appeal.

Orders