Er v R - [2018] NSWCCA 286

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Er v R [2018] NSWCCA 286
Hearing dates: 26 November 2018
Decision date: 07 December 2018
Before: Hoeben CJ at CL at [1];
Bellew J at [66];
Campbell J at [67]
Decision:
(1)   Leave to appeal against sentence is granted.
(2)   The appeal is allowed and the sentence imposed on the applicant by his Honour Judge Bennett SC on 17 November 2017 is quashed.
(3)   In lieu thereof the applicant is sentenced as follows:
(a)   In respect of the drive while disqualified offence on 23 March 2016 imprisonment for 9 months, commencing 1 October 2017 and expiring 30 June 2018.
(b)   For the break enter and steal offence on 23 March 2016 imprisonment with a non-parole period of 1 year and 8 months, commencing 1 February 2018 and expiring 30 September 2019, with a balance of term of 1 year and 4 months expiring 31 January 2021.
(c)   The applicant is disqualified from holding a driver’s licence for 12 months commencing 30 September 2019 until 29 September 2020.

Catchwords: CRIMINAL LAW – sentence appeal – one count of break enter and steal and one count of driving while disqualified – imprisonment for 5 years and 6 months with a non-parole period of 3 years – whether sentencing judge misapprehended the sentence imposed upon a co-offender – whether parity principle breached – whether sentencing judge took into account the totality principle – whether sentencing judge acted upon an erroneous maximum penalty in respect of the drive while disqualified offence – whether overall sentence manifestly excessive – error in the sentencing process made out – need to re-sentence – appeal allowed and sentence reduced.
Legislation Cited: Crimes Act 1900 (NSW) – s 112(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW) s3A, 19(2)
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Criminal Procedure Act 1986 (NSW) – s 166
Road Transport Act 2013 (NSW) – s 9, 54(1)(a), 205A
Road Transport (Driver Licence Disqualification) Act 2017 (NSW)
Cases Cited: Andreata v R [2015] NSWCCA 239
Estephan v R [2015] NSWCCA 100
Kandemir v R [2018] NSWCCA 154
Category: Principal judgment
Parties: William Er – Applicant
Regina – Respondent Crown
Representation: Counsel:
S Howell – Applicant
M England – Respondent Crown
Solicitors:
E McWilliams – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2016/096895
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 November 2017

Before:

Bennett SC DCJ

File Number(s):

2016/096895

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty in the District Court seventeen days before trial to one count of break enter and steal pursuant to s 112(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is imprisonment for 14 years.

The applicant was also sentenced for one offence of driving while disqualified pursuant to s 54(1)(a) of the Road Transport Act 2013 (NSW) which was before the court by way of…

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 Er v R

Details

AGLC: Er v The Queen [2018] NSWCCA 286
Case: [2018] NSWCCA 286
Decision Date: 07 December 2018

CaseChat Overview and Summary

The appellant in this case was found guilty of one count of break enter and steal and one count of driving while disqualified, and sentenced to imprisonment for a total of 5 years and 6 months, with a non-parole period of 3 years. The appellant appealed against the sentence, arguing that the sentencing judge had made several errors in the sentencing process. The appeal was heard by the court of criminal appeal.

The court had to determine whether the sentencing judge had misapprehended the sentence imposed upon a co-offender, breached the parity principle, failed to take into account the totality principle, or acted upon an erroneous maximum penalty in respect of the driving while disqualified offence. The court also had to consider whether the overall sentence was manifestly excessive.

The court found that the sentencing judge had indeed made several errors in the sentencing process. The judge had misapprehended the sentence imposed upon the co-offender, breached the parity principle, and failed to take into account the totality principle. The judge had also acted upon an erroneous maximum penalty in respect of the driving while disqualified offence. The court found that these errors had resulted in an overall sentence that was manifestly excessive. The appeal was allowed, and the sentence was reduced.

The court ordered that the appellant be re-sentenced by a different judge, taking into account the totality principle and the correct maximum penalty for the driving while disqualified offence. The court also noted that the reduced sentence should be consistent with the sentence imposed upon the co-offender, in accordance with the parity principle.

Orders