McClellan CJ at CL at 1; Adams J at 2; Johnson J at 3
DECISION:
1. Time extended to 22 June 2005 to file Notice of Intention to Apply for Leave to Appeal; 2. Leave to appeal is granted, appeal allowed and sentence imposed in District Court on 24 April 2003 quashed; 3. Pursuant to s.12(2) Criminal Appeal Act 1912, matter remitted to District Court for resentencing in accordance with this judgment; 4. Question of the Applicant’s bail pending his appearance in the District Court may be determined by a single judge.
CATCHWORDS:
SENTENCING - application for extension of time - appeal against severity of sentence - supply prohibited drug - periodic detention - need to fix term of sentence before considering alternatives to full-time custody - error established - application of test under section 6(3) Criminal Appeal Act 1912 by Court of Criminal Appeal - whether Court to apply test by reference to events at time of sentence in the District Court or at time of hearing by Court of Criminal Appeal - nature of section 6(3) test - section 6(3) test satisfied - sentence quashed - matter remitted under section 12(2) Criminal Appeal Act 1912 to District Court for resentencing.
[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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AGLC
Douar v R [2005] NSWCCA 455
Case
[2005] NSWCCA 455
Decision Date
CaseChat Overview and Summary
In the matter of Douar against the Crown, the Court of Criminal Appeal was tasked with reviewing the sentence imposed on the appellant by the District Court. Douar was found guilty of supplying a prohibited drug and was sentenced to a term of periodic detention. The appellant sought an extension of time to appeal against the severity of the sentence, which was initially denied. However, the appeal against the sentence's severity was subsequently allowed, leading to the current proceedings.
The primary legal issue before the Court of Criminal Appeal was whether it should apply the test under section 6(3) of the Criminal Appeal Act 1912 by reference to events at the time of the sentence in the District Court or at the time of the hearing by the Court of Criminal Appeal. The appellant argued that the Court of Criminal Appeal should consider the events at the time of the hearing. Conversely, the Crown contended that the assessment should be based on the circumstances at the time of the original sentencing. The Court had to determine the appropriate scope of the section 6(3) test and whether it was satisfied in this case.
The Court of Criminal Appeal held that the section 6(3) test should be applied by reference to the events at the time of the hearing before the Court of Criminal Appeal, not the District Court. The Court found that the test was satisfied, leading to the quashing of the original sentence. The Court determined that it was necessary to fix the term of the sentence before considering alternatives to full-time custody. As the sentence was deemed to be excessive, the Court remitted the matter to the District Court for resentencing under section 12(2) of the Criminal Appeal Act 1912.
The Court of Criminal Appeal quashed the original sentence and remitted the matter to the District Court for resentencing, ensuring that the term of the sentence was fixed before considering alternatives to full-time custody. The Court of Criminal Appeal's decision was based on the established error and the satisfaction of the section 6(3) test, reflecting the need for a fair and just reassessment of the appellant's sentence.