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Darcy v R

Darcy v R

Case [2022] NSWCCA 54 18 March 2022

Appeal

Criminal Liability

Sentencing

Statutory Construction

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Darcy v R [2022] NSWCCA 54
Hearing dates: 2 February 2022
Date of orders: 18 March 2022
Decision date: 18 March 2022
Before: Beech-Jones CJ at CL at [1]
Davies J at [11]
Bellew J at [12]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal is allowed.
(3) The aggregate sentence imposed in the District Court is quashed.
(4) In lieu thereof, the applicant is sentenced to an aggregate term of 6 years imprisonment commencing on 1 January 2020 and expiring on 31 December 2025.
(5) Specify a non-parole period of 3 years and 4 months imprisonment commencing on 1 January 2020 and expiring on 30 April 2023.
(6) The applicant will be eligible for release on parole on 30 April 2023 and his sentence will expire on 31 December 2025.

Catchwords:
CRIMINAL LAW – Offences – Sentence – Appeal – Statutory construction – Where applicant pleaded guilty to offences of entering a building or land with intent to commit and indictable offence – Where applicant also pleaded guilty to committing those offences after being convicted of an indictable offence – Whether two separate offences created or whether one offence should be regarded as an aggravated form of the other – Whether a miscarriage of justice arose from the fact of the applicant’s pleas of guilty to both groups of offences
PRACTICE AND PROCEDURE – Where sentencing judge cited incorrect maximum penalties for offences on the basis of erroneous material provided by the Crown – Where that error had the capacity to infect the exercise of the sentencing discretion – Leave to appeal granted – Applicant resentenced – Observations as to the pressure on Judges of the District Court and the consequent necessity for legal practitioners to ensure that accurate information is provided to a sentencing Court

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes Legislation Amendment (Sentencing) Act 1999 (NSW)
Drug Court Act 1998 (NSW)
Criminal Procedure Act1986 (NSW)

Cases Cited:
Haines v R [2021] NSWCCA 149
Maldonado v R [2009] NSWCCA 189
McGovern aka Lanesbury v R [2021] NSWCCA 176
MM v R [2016] NSWCCA 235
Pearce v R (1998) 194 CLR 610; [1998] HCA 57
R v Darcy [2020] NSWDC 824
R v KCH [2001] NSWCCA 273
R v Sagiv (1986) 22 A Crim R 73
R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170
R v Tillott (1991) 53 A Crim R 46

Category: Principal judgment
Parties: Ethan Darcy – Applicant
Regina – Respondent
Representation:
Counsel:
K Averre – Applicant
G Newton – Respondent
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions NSW – Respondent

File Number(s): 2018/00389554, 2019/00070480, 2019/00076821, 2019/00081466, 2019/00114105, 2019/00120339, 2019/00189659 & 2019/00192608
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 824

Date of Decision:

18 November 2020

Before:

His Honour Judge Bennett SC

File Number(s):

2018/00389554, 2019/00070480, 2019/0076821, 2019/00081466,…

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 Darcy v R

Details

AGLC: Darcy v R [2022] NSWCCA 54
Case: [2022] NSWCCA 54
Decision Date: 18 March 2022

CaseChat Overview and Summary

In the case of Darcy v R, the applicant pleaded guilty to offences involving entering a building or land with intent to commit an indictable offence, as well as committing those offences after having been previously convicted of an indictable offence. The central issue before the court was whether these two sets of offences constituted separate offences or if one should be considered an aggravated form of the other. Furthermore, the court needed to determine if a miscarriage of justice had occurred due to the applicant’s pleas of guilty to both groups of offences.

The court delved into the statutory construction of the relevant offences, considering whether the two sets of offences were intended to be separate or if one offence should be treated as an aggravated version of the other. The court also examined the impact of the sentencing judge citing incorrect maximum penalties for the offences, based on erroneous information provided by the Crown. The court noted that such an error could potentially influence the sentencing discretion, thereby necessitating a re-evaluation of the sentence imposed.

In its reasoning, the court concluded that the applicant's pleas of guilty to both sets of offences did not constitute a miscarriage of justice. The court also determined that the two sets of offences were distinct rather than one being an aggravated form of the other. Due to the sentencing judge citing incorrect maximum penalties, the court granted leave to appeal and resentenced the applicant. The court highlighted the pressures on Judges of the District Court and emphasised the importance of legal practitioners providing accurate information to the sentencing court to avoid such errors.

The final orders of the court involved the resentencing of the applicant, taking into account the correct maximum penalties for the offences. The court's decision underscored the need for legal practitioners to ensure that all material provided to the court is accurate and complete, to prevent any potential miscarriage of justice arising from incorrect information.

Orders