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Delaney v R; R v Delaney

Delaney v R; R v Delaney

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Delaney v R; R v Delaney [2013] NSWCCA 150
Hearing dates: 11 June 2013
Decision date: 26 June 2013
Before: Hoeben CJ at CL at [1]
Harrison J at [98]
Beech-Jones J at [99]
Decision:
Appellant's appeal against conviction dismissed. Crown's appeal against sentence dismissed.

Catchwords: CRIMINAL LAW - conviction appeal - demand money with menaces - whether demand has to be made on each occasion for offence to be made out - continuing effect of original demand - whether inclusion of money laundering count was an abuse of process - elements of offences different - substantial overlap in offending conduct - no abuse of process - SENTENCE APPEAL BY CROWN - whether objective criminality of offences determined - whether error in commencement date of sentences - whether a failure to accumulate - whether Crown can rely upon the "parity principle" to increase a sentence - whether offender's role and aggravating features taken into account - whether too much weight given to offender's subjective case - whether sentences individually and as aggregated manifestly inadequate - Crown appeal dismissed.
Legislation Cited: Copyright Act 1968 - ss135ASB(1) and s135ASC(1)
Crimes Act 1900 - s99(1), s99(2), s193B(2)
Criminal Appeal Act 1912 - s5D
Criminal Code Act 1995 (Cth) - s400.6(1)
Cases Cited: Austin v R [1989] HCA 26; 166 CLR 669
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Carroll v The Queen [2009] HCA 13; 83 ALJR 579
House v R [1936] HCA 40; 55 CLR 499
Lowe v R [1984] HCA 46; 154 CLR 606
Markarian v R [2005] HCA 25; 228 CLR 357
MH v Regina [2011] NSWCCA 230
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Nahlous v R [2010] NSWCCA 58; 77 NSWLR 463
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Anderson [2012] NSWCCA 175
R v Collister (1955) 39 Cr App R 100
R v Edwards (1996) 90 A Crim R 510
R v Nguyen [2010] NSWCCA 331
Rae v R (1998) 45 NSWLR 546 at 554
Regina v Robert Brian Grbin [2004] NSWCCA 220
Category: Principal judgment
Parties: Darren John Delaney - Appellant
Regina - Crown
Representation: Counsel:
Mr D Barrow - Appellant
Mr R Herps - Crown
Solicitors:
SE O'Connor - Legal Aid NSW
S Kavanagh, Solicitor for Public Prosecutions - Crown

File Number(s): 2010/303962 2010/303962
Decision under appeal

Before:

Charteris SC DCJ

File Number(s):

2010/303962

Judgment

HOEBEN CJ at CL: There are two proceedings before the Court. The appellant has appealed against his conviction and the Director of Public Prosecutions has appealed against sentence, pursuant to s5D of the Criminal Appeal Act 1912.

The appellant was arraigned on an indictment that contained four counts:

Count 1: On 3 May 2010 at Raymond Terrace in the State of New South Wales in the company of other persons with menaces demanded from Neil Metcraft…

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: [2013] NSWCCA 150
Decision Date: 26 June 2013

CaseChat Overview and Summary

In the case of Delaney v R; R v Delaney, the appellant, Mr. Delaney, appealed against his conviction and sentence for demanding money with menaces and money laundering. The appeal was heard in the High Court of Australia. The Crown also appealed against the sentence, arguing that it was manifestly inadequate.

The primary legal issues before the court were whether the demand for money with menaces needed to be repeated on each occasion for the offence to be established, and if the inclusion of the money laundering count was an abuse of process. The court had to determine whether the elements of the offences differed sufficiently to allow for both charges and whether there was a substantial overlap in the offending conduct that constituted an abuse of process. Additionally, the court considered whether the sentences imposed were objectively criminal and whether the offender's role and aggravating features were adequately taken into account.

The High Court held that the demand for money with menaces did not need to be repeated on each occasion for the offence to be made out, as the continuing effect of the original demand was sufficient. The court also found that there was no abuse of process in including the money laundering count, as the elements of the offences were different and there was no substantial overlap in the offending conduct. The court further determined that the sentences were not manifestly inadequate and that the offender's role and aggravating features were considered. The Crown's appeal against the sentence was dismissed.

The High Court made no orders in relation to the appeal and confirmed the conviction and sentence of the appellant.

Orders