Doherty v R - [2006] NSWCCA 133

CITATION: Doherty v R [2006] NSWCCA 133

HEARING DATE(S): 7 April 2006

JUDGMENT DATE:
28 April 2006

JUDGMENT OF: Grove J at 1; Simpson J at 2; Bell J at 29

DECISION: (i) leave to appeal against each sentence granted; (ii) appeals allowed; the applicant re-sentenced as follows: Second indictment (taking into account the additional offences) - Imprisonment for a fixed term of one year, to commence on 7 November 2003 and expire on 6 November 2004; First indictment - Count 1: (taking into account the offence of break, enter and steal) imprisonment with a non-parole period of three years, to commence on 7 November 2004 and expire on 6 November 2007, with a balance of term of four years, to expire on 6 November 2011; Counts 2 and 3: imprisonment for a fixed term of two years, to commence on 7 May 2006 and expire on 6 May 2008; Count 4: imprisonment with a non-parole period of five years, to commence on 7 May 2006, and expire on 6 May 2011, with a balance of term of four years, to expire on 6 May 2015; Counts 5 and 6: imprisonment with a non-parole period of six years, to commence on 7 November 2007, and expire on 6 November 2013, with a balance of term of five years to expire on 6 November 2018. The result is an overall head sentence of 15 years with an overall non-parole period of 10 years. The earliest date on which the applicant would be eligible for release on parole is 6 November 2013.

CATCHWORDS: application for leave to appeal against severity of sentences - pleas of guilty - aggravated break and enter and commit a serious indictable offence - two counts of indecent assault - three counts of aggravated sexual assault - supply prohibited drug - Form 1 offences - prior criminal record - principles of totality in sentencing - circumstances of aggravation - same aggravating factor in respect of four offences - need for caution to avoid duplication of punishment - accumulation of sentences discretionary - accumulation excessive - manifestly excessive effective head sentence and non-parole period

LEGISLATION CITED: Crimes Act 1900, s61L, s61J(1), s112(2)
Crimes (Sentencing Procedure) Act 1999, Part 3 Division 3, Part 4 Division 1A
Drug Misue and Trafficking Act 1985, s25(1)

CASES CITED: Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66

PARTIES: Stuart Charles Doherty - Applicant
Crown - Respondent

FILE NUMBER(S): CCA 2006/53

COUNSEL: C Smith - Applicant
P Ingram - Respondent

SOLICITORS: S O'Connor - Applicant
S Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0032

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

LOWER COURT DATE OF DECISION: 06/01/2005

2006/53

GROVE J
SIMPSON J
BELL J
Friday 28 April 2006

Stuart Charles DOHERTY v REGINA

Judgment

1 GROVE J: I agree with Simpson J.

2 SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him…

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: [2006] NSWCCA 133
Decision Date: 28 April 2006

CaseChat Overview and Summary

In Doherty v R, the appellant sought leave to appeal against the severity of sentences imposed by the Supreme Court of New South Wales following pleas of guilty to multiple serious offences. The appellant was convicted of aggravated break and enter and commit a serious indictable offence, two counts of indecent assault, three counts of aggravated sexual assault, and supplying a prohibited drug. These offences were committed in the context of multiple incidents over a short period of time, against multiple victims. The appellant had a prior criminal record.

The primary legal issues before the court involved the application of the principles of totality in sentencing and the need to avoid duplication of punishment for the same aggravating factors. The court was required to consider the cumulative effect of the sentences imposed, whether the aggregate punishment was excessive, and if the non-parole period was manifestly excessive. The appellant argued that the sentences were excessive due to the application of aggravating factors that were common across multiple offences, leading to a cumulative effect that was not warranted.

The court examined the sentencing principles, particularly the need for caution to avoid duplication of punishment when the same aggravating factor applies to multiple offences. It held that while the accumulation of sentences is generally a matter of judicial discretion, in this case, the cumulative effect was excessive. The court found that the aggregate punishment and the non-parole period were manifestly excessive, given the overlap in aggravating factors and the need to ensure that the punishment fits the crime without unjustly magnifying the sentence. The court granted leave to appeal on the basis that the sentences imposed were manifestly excessive.

The court's final orders included granting leave to appeal against the severity of sentences, with specific directions for the appellate court to review the imposition of sentences in light of the principles of totality and to ensure that the punishment does not excessively magnify the cumulative effect of the aggravating factors.

Orders