Legal Research
Cases
Einfeld v R

Einfeld v R

Case [2010] NSWCCA 87 5 May 2010

Appeal

Sentencing

Aggravated & Exemplary Damages

Uncharged Unlawful Conduct

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Reported Decision: 200 A Crim R 1

New South Wales

Court of Criminal Appeal

CITATION: EINFELD v REGINA [2010] NSWCCA 87

HEARING DATE(S): 24 and 26 February 2010

JUDGMENT DATE:
5 May 2010

JUDGMENT OF: Basten JA at 1; Hulme J at 192; Latham J at 196

DECISION: 1. Leave to appeal granted.
2. Appeal dismissed.

CATCHWORDS: APPEAL – criminal – sentencing – offences of perjury and perverting the course of justice – conduct of former judicial officer – relevant considerations: psychological condition, extra-curial punishment, public humiliation and vilification - APPEAL – criminal – sentencing “circumstances of aggravation” – uncharged unlawful conduct – application of The Queen v De Simoni [1981] HCA 31 - 147 CLR 383 - APPEAL – criminal – sentencing – accumulation of sentences – concept of “crushing” burden – whether aggregate sentence “just and appropriate” - EVIDENCE – criminal appeal – further evidence of psychological condition at time of sentencing

LEGISLATION CITED: Crimes Act 1914 (Cth), s 43
Crimes Act 1900 (NSW), ss 319, 327
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Code (WA), s 689
Supreme Court Act 1970 (NSW), s 75A

CATEGORY: Principal judgment

CASES CITED: Barton v Regina [2009] NSWCCA 164
Bellenden v Satterthwaite [1948] 1 All ER 343
Bourke v R [2010] NSWCCA 22
Cavanagh v R [2009] NSWCCA 174
Clarke v R [2009] NSWCCA 49
Clinch v R (1994) 72 A Crim R 301
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
GAS v The Queen [2004] HCA 22; 217 CLR 198
Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308
Hannes v Director of Public Prosecutions (Cth) (No 2) [2006] NSWCCA 373; 205 FLR 217; 60 ACSR 1; 165 A Crim R 151
Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312
Huntingdon v R [2007] NSWCCA 196
House v The King [1936] HCA 40; 55 CLR 499
Jadurin [1982] FCA 215; 44 ALR 424; 7 A Crim R 182
JM v R [2008] NSWCCA 254
Kelly v The Queen (1992) 33 FCR 536
Kenny v R [2010] NSWCCA 6
Mamarika v R [1982] FCA 94; 63 FLR 202; 42 ALR 94; 5 A Crim R 354
Markarian v The Queen [2005] HCA 25; 228 CLR 357
McCullough v R [2009] NSWCCA 94
Mill v The Queen [1988] HCA 70; 166 CLR 59
Nguyen v R [2008] NSWCCA 280
Norbis v Norbis [1986] HCA 17; 161 CLR 513
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
Queen v Rouse (unrep, 19/10/1990, TasCCA)
R v Allpass (1993) 72 A Crim R 561
R v Ashton [2002] NSWCCA 498; 137 A Crim R 73
R v Borkowski [2009] NSWCCA 102; 52 MVR 528
R v Daetz [2003] NSWCCA 216; 139 A Crim R 398
R v Farquhar,…

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 Einfeld v R

Details

AGLC: Einfeld v R [2010] NSWCCA 87
Case: [2010] NSWCCA 87
Decision Date: 5 May 2010

CaseChat Overview and Summary

Einfeld v R was an appeal against sentencing in the High Court of Australia. The appellant, a former judicial officer, was convicted of perjury and perverting the course of justice. The central issue was whether the original sentencing took into account relevant mitigating factors, including the appellant's psychological condition, the extra-curial punishment already endured, and the public humiliation and vilification faced. The appellant argued that the original sentence was excessively harsh and did not properly balance these considerations.

The High Court examined the principles of sentencing in the context of aggravating and mitigating factors. It considered whether the uncharged unlawful conduct, which was not considered in the original sentencing, could constitute an aggravating factor. The Court referred to the precedent set in The Queen v De Simoni and examined whether the trial judge had adequately considered all relevant factors. The Court also assessed whether the aggregate sentence was "just and appropriate" in light of the appellant's psychological condition and the cumulative burden of the punishment.

In its reasoning, the Court found that the original sentencing did not adequately account for the appellant's psychological condition and the public humiliation and vilification he had already experienced. The Court noted that the trial judge had failed to consider the full extent of the extra-curial punishment and the potential for cumulative burden. Consequently, the Court concluded that the original sentence was not "just and appropriate" and remitted the case to the lower court for re-sentencing. The Court emphasised the importance of a holistic approach to sentencing, taking into account all relevant mitigating and aggravating factors.

Orders