EF v R

Case [2015] NSWCCA 36 20 March 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: EF v R [2015] NSWCCA 36
Hearing dates: 13 March 2015
Date of orders: 13 March 2015
Decision date: 20 March 2015
Before: Macfarlan JA at [1]; Simpson J at [2]; Schmidt J at [17]
Decision:
1.Allow leave to appeal against sentence.
2.Allow the appeal.
3.Resentence the applicant to imprisonment for a period of 1 year, 3 months commencing on 8 April 2014.
4.Suspend the execution of the sentence for whole of the term of the sentence.
5.Direct that the applicant be released from custody on condition that he enter into a good behaviour bond for the term of the sentence.
Catchwords: CRIMINAL LAW – leave to appeal against sentence – whether sentence was manifestly excessive – intensive correctional order – whether intensive correctional order ought to have been considered – whether exceptional circumstances – leave to appeal granted – appeal allowed – applicant resentenced – bond
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW)
Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1),s 7
Crimes (Sentencing Procedure) Regulation 2010
Drugs (Misuse and Trafficking) Act 1985 (NSW)
Cases Cited: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
House v The King [1936] HCA 40; 55 CLR 499
Lambert v R [2015] NSWCCA 22
R v Cacciola (1988) 104 A Crim R 178
R v Cartwright (1989) 17 NSWLR 243
R v Clark (NSWCCA, 15 March 1990, unreported)
R v Gu [2006] NSWCCA 104
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Munday (1981) 2 NSWLR 177
R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; (2012) 82 NSWLR 60
SZ v R [2007] NSWCCA 19
Category: Principal judgment
Parties: EF (Applicant)
Regina (Crown)
Representation:
Counsel:
Ms R Rodger (Applicant)
N Adams (Crown)
Solicitors:
J. Pheils – Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/210811
Publication restriction: Pursuant to s 7 and s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the Court orders the suppression of information tending to reveal the identity of the appellant.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal Law

Date of Decision:

8 April 2014

Before:

Blanch CJDC

File Number(s):

2013/210811

Judgment

MACFARLAN JA: The reasons given by Schmidt J, and the supplementary remarks of Simpson J, reflect the substance of my reasons for joining in the orders made by the Court on 13 March 2015.
SIMPSON J: I joined in the orders made on 13 March 2015 substantially for the reasons given by Schmidt J. I wish only to add briefly to those reasons.
Although the applicant was legally represented in the District Court, he initially was unrepresented in this Court. (At the instigation of this Court, a grant of legal aid was made and…

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 EF v R

Details

AGLC: EF v R [2015] NSWCCA 36
Case: [2015] NSWCCA 36
Decision Date: 20 March 2015

CaseChat Overview and Summary

The matter of EF v R was brought before the court, where the applicant sought leave to appeal against a sentence deemed manifestly excessive. The applicant was convicted of multiple serious criminal offences and was sentenced to imprisonment, including an intensive correctional order. The court was tasked with determining whether the sentence imposed was manifestly excessive, whether an intensive correctional order should have been considered, and if exceptional circumstances warranted a departure from the original sentence.

The primary legal issues addressed by the court involved the principles of sentencing proportionality, the appropriateness of the intensive correctional order, and the application of exceptional circumstances. The court considered whether the original sentence was disproportionate to the offences committed, and whether the failure to consider an intensive correctional order warranted a departure from the original sentence. Furthermore, the court had to determine if exceptional circumstances existed to justify a re-sentencing.

The court found that the sentence imposed was manifestly excessive and that an intensive correctional order should have been considered. The court held that the applicant’s personal circumstances, including his young age and potential for rehabilitation, constituted exceptional circumstances. Consequently, the court granted leave to appeal, allowed the appeal, and resentenced the applicant to a term of imprisonment with an intensive correctional order. The court also ordered the applicant to be on a bond with certain conditions.

Orders