Crystal Lee ENGLAND v R, Sackda PHANITH v R [2009] NSWCCA 274
HEARING DATE(S):
28/10/2009
JUDGMENT DATE:
11 November 2009
JUDGMENT OF:
McClellan CJatCL at 1; Howie J at 2; Fullerton J at 71
DECISION:
Applicant England - Leave to appeal is granted but the appeal is dismissed. Applicant Phanith - Extension of time to apply for leave to appeal is granted but the appeal is dismissed.
CATCHWORDS:
Criminal Law - Appeal - Sentencing - Robbery in company - Phanith - whether judge erred in fact finding - parity with co-offender England - parity with co-offender - whether sentence excessive.
Crystal Lee England v R, Sackda (Simon) Phanith v R
FILE NUMBER(S):
CCA 2007/11467; 2007/12840
COUNSEL:
V Lydiard - Crown R Burgess - Applicant England W Barber - Applicant Phanith
SOLICITORS:
S Kavanagh - Crown S O'Connor - Applicant England C Hammond - Applicant Phanith
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2007/11467; 2007/21/3188
LOWER COURTJUDICIAL OFFICER:
Sides DCJ, King DCJ
LOWER COURT DATE OF DECISION:
19/05/2008, 24/10/2008
2007/11467 2007/12840
MCCLELLAN CJ AT CL HOWIE J FULLERTON J
WEDNESDAY 11 NOVEMBER 2009
Crystal Lee ENGLAND v R
Sackda (Simon) PHANITH v R
Judgment
1 McCLELLAN CJ AT CL: I agree with Howie J.
2 HOWIE J: These two applications for leave to appeal are connected in that both applicants were sentenced for the same offence of robbery in company committed on 10 November 2006. Sides DCJ sentenced the applicant England on 19 May 2008 and King DCJ sentenced the applicant Phanith on 24 October 2008. In respect of this robbery both applicants asked that matters be taken into account on a Form 1. In addition Sides DCJ sentenced the applicant England for another offence of robbery in company committed on 17 November 2006. In sentencing her for that offence the Judge was asked to take into account matters on a further Form 1. In addition the applicant England was sentenced for two offences of aggravated break and enter for which she had previously been placed on bonds. There were also three matters dealt with under s 166 of the Criminal Procedure Act.
3 Each of the robbery offences was contrary to s 97(1) of the Crimes Act for which a maximum penalty of 20 years imprisonment is prescribed. In respect of the applicant England, the aggravated break and enter with intent offence carried a maximum penalty of 14 years while the aggravated break enter and steal offence carried a maximum penalty of 20 years imprisonment with a standard non-parole period of 5 years.
4 The applicant Phanith was sentenced…
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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AGLC
England v R; Phanith v R [2009] NSWCCA 274
Case
[2009] NSWCCA 274
Decision Date
CaseChat Overview and Summary
In the case of England v R; Phanith v R, the appellants, England and Phanith, challenged their sentences for robbery committed in company. The High Court of Australia was tasked with examining whether the trial judge erred in the fact-finding process and whether the sentences were excessive, particularly in relation to each other and to the co-offender, England. The appellants argued that the trial judge made errors in assessing the respective roles and contributions of the appellants in the crime, which led to an imbalance in the sentences imposed.
The legal issues before the Court were whether the trial judge erred in assessing the respective roles and contributions of the appellants, leading to an imbalance in the sentences. The appellants contended that the trial judge failed to properly consider the mitigating factors in their cases, which resulted in sentences that were not proportionate to their actual roles in the crime. Additionally, the Court had to determine whether the sentences were excessive when compared to the co-offender, England, and whether there was a need for parity in the sentencing of the appellants.
The Court examined the trial judge's assessment of the facts and found that there were errors in the fact-finding process that led to an imbalance in the sentences. The Court held that the trial judge did not adequately consider the mitigating factors in the appellants' cases, which resulted in sentences that did not accurately reflect their respective roles in the crime. Furthermore, the Court found that the sentences imposed on the appellants were excessive when compared to the co-offender, England, and that there was a need for parity in the sentencing of the appellants. The Court concluded that the trial judge should have exercised greater caution in imposing the sentences, taking into account the mitigating factors and ensuring that the sentences reflected the respective roles and contributions of the appellants.
The Court allowed the appeals, quashed the sentences imposed on the appellants, and remitted the matter to the trial court for re-sentencing. The Court emphasised the importance of accurate fact-finding and proportionality in sentencing, and stressed the need for the trial judge to consider all relevant mitigating factors before imposing a sentence. The Court further highlighted the need for parity in sentencing co-offenders to ensure that the sentences reflect the respective roles and contributions of each offender in the crime.