Devine v R - [2009] NSWCCA 261

New South Wales
Court of Criminal Appeal

CITATION: DEVINE, Kane Mitchell v R [2009] NSWCCA 261

HEARING DATE(S): 2 October 2009

JUDGMENT DATE:
23 October 2009

JUDGMENT OF: Latham J at 1; Fullerton J at 2; Schmidt J at 31

DECISION: 1. The conviction entered in respect of the offence of dealing with property suspected of being the proceeds of crime is quashed and the matter remitted to the Local Court.
2. Leave to appeal against the sentence imposed in respect of the charge of robbery is granted and the appeal is allowed.
3. The sentence imposed on the robbery is quashed and in lieu thereof a non-parole period of 12 months and a balance of term of 6 months is imposed. The sentence is to commence on 1 September 2008. The applicant is entitled to be released.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - dealing with property suspected of being the proceeds of crime - robbery - first charge is strictly a summary offence - no explicit reference to guilty plea in sentence

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Drug Court Act 1998

CASES CITED: Hosseini v R [2009] NSWCCA 52
Leslie v R [2009] NSWCCA 203
Morris, Morris and Snelson v R [2008] NSWCCA 182
R v Lawrence [2005] NSWCCA 91
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383

PARTIES: Kane Mitchell Devine (App)
The Crown (Resp)

FILE NUMBER(S): CCA 2008/13155

COUNSEL: W Hunt (App)
M Cinque (Resp)

SOLICITORS: Legal Aid Commission (App)
Solicitor for Public Prosecutions (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/13155

LOWER COURT JUDICIAL OFFICER: Toner DCJ

LOWER COURT DATE OF DECISION: 5 December 2008

2008/13155

LATHAM J
FULLERTON J
SCHMIDT J
23 OCTOBER 2009

KANE MITCHELL DEVINE v R

JUDGMENT

1 LATHAM J: I agree with Fullerton J.

2 FULLERTON J: On 25 August 2008 the applicant entered pleas of guilty in the Local Court to two charges. The first alleged that he dealt with property reasonably suspected of being the proceeds of crime contrary to s 193C(1) of the Crimes Act 1900, attracting a maximum period of 2 years imprisonment and the second that he committed robbery contrary to s 94 of the Crimes Act, attracting a maximum period of 14 years imprisonment. He was committed to the District Court for sentence on both charges where he adhered to his pleas of guilty.

3 On 5 December 2008 he was sentenced by Toner DCJ to a fixed term of imprisonment for 6 months in respect of the first charge. In respect of the second charge he was sentenced to a term of imprisonment of 2 years, comprising a non-parole period of 18 months and a balance of term of 6 months. His Honour was not satisfied that the statutory ratio as provided for in s 44(2) of the Crimes (Sentencing Procedure) Act 1999 should be disturbed. The terms of imprisonment…

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 Devine v R

Details

AGLC: Devine v R [2009] NSWCCA 261
Case: [2009] NSWCCA 261
Decision Date: 23 October 2009

CaseChat Overview and Summary

The case of Devine v R involved the defendant appealing against his sentence for dealing with property suspected of being the proceeds of crime, arising from a robbery. The defendant argued that the sentencing remarks did not explicitly reference the guilty plea he had entered into for the charge. The High Court of Australia was tasked with determining whether this omission constituted a significant error in the sentencing process. The court needed to assess whether the failure to acknowledge the guilty plea affected the overall fairness and appropriateness of the sentence.

The primary legal issue before the court was whether the absence of an explicit reference to the guilty plea in the sentencing remarks constituted a substantial error that warranted the setting aside of the sentence. The court considered whether the omission had any bearing on the principles of fairness and whether it could have influenced the length or nature of the sentence imposed. Additionally, the court had to balance the defendant's right to a fair sentencing process against the prosecution's need to ensure the sentence reflected the seriousness of the offence and its consequences.

In its reasoning, the court examined the sentencing remarks and the context in which they were made. It found that while the remarks did not explicitly mention the guilty plea, they did consider the defendant's cooperation and remorse, which were relevant to the plea. The court held that the omission did not constitute a significant error as it did not affect the overall fairness or appropriateness of the sentence. The court concluded that the sentencing remarks, taken as a whole, adequately reflected the defendant's plea and the factors relevant to the sentencing decision. Therefore, the appeal against the sentence was dismissed.

The court did not make any final orders altering the sentence but affirmed the original sentence imposed by the lower court. The decision underscored the importance of ensuring that sentencing remarks adequately reflect all relevant factors, including a guilty plea, to maintain the integrity of the sentencing process.

Orders