Macfarlan JA at [1] Rothman J at [2] Dhanji J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) Quash the sentences imposed in the District Court on 6 November 2020 by his Honour Judge Colefax SC.
(4) In lieu thereof, with respect to each count on the indictment, sentence the applicant to imprisonment for a non-parole period of 2 years commencing on 6 April 2020 and concluding on 5 April 2022 with a balance of term of 1 year which is due to expire on 5 April 2023.
(5) I note that the applicant became eligible for parole on 5 April 2022.
Catchwords:
CRIME – appeals – appeal against sentence – two offences of doing an act intending to pervert the course of justice – forging letters for use in bail application – sentencing judge rejected applicant’s evidence in psychological report – no indication to applicant that issue was to be taken – denial of procedural fairness – error in assessment of objective seriousness – “typical” case not necessarily a mid-range case – cumulation not warranted – resentence
Counsel: C Wasley (Applicant) A Morris (Respondent)
Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):
2019/360389
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Citation:
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 Edmonds v R
Sign in free to access the full text
Details
AGLC
Edmonds v R [2022] NSWCCA 103
Case
[2022] NSWCCA 103
Decision Date
CaseChat Overview and Summary
In the case of Edmonds v R, the appellant appealed against the sentence imposed by the Supreme Court of Queensland, which found him guilty of two counts of doing an act intending to pervert the course of justice. The appellant had forged letters to be used in his application for bail. The appellant argued that the sentencing judge erred in rejecting his evidence in a psychological report, in not indicating to him that this issue was to be taken into account, and in assessing the objective seriousness of the offending. The appellant also contended that the cumulative effect of the alleged errors warranted a reduction in his sentence.
The court considered whether the sentencing judge erred in rejecting the appellant’s evidence in the psychological report, whether the appellant was denied procedural fairness, and whether the court erred in assessing the objective seriousness of the offending. The court also examined whether the cumulative effect of the alleged errors warranted a reduction in the appellant’s sentence. The court found that the sentencing judge erred in rejecting the appellant’s evidence in the psychological report without providing the appellant with an opportunity to respond to the issue. The court also found that the appellant was denied procedural fairness and that the court erred in assessing the objective seriousness of the offending. However, the court held that the cumulative effect of the alleged errors did not warrant a reduction in the appellant’s sentence.
The court held that the appellant’s appeal should be allowed, and that he should be resentenced. The court noted that a “typical” case was not necessarily a mid-range case, and that cumulation was not warranted in this case. The court ordered that the appellant be resentenced by a different judge. No orders were made as to the quantum of the new sentence.