Evans v R - [2017] NSWCCA 281

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Evans v R [2017] NSWCCA 281
Hearing dates: 21 November 2017
Decision date: 27 November 2017
Before: Hoeben CJ at CL at [1];
Davies J at [2];
Adamson J at [3]
Decision:
(1) Extend the time for filing the application for leave to appeal to 11 October 2017.

(2) Grant leave to appeal against sentence.

(3) Allow the appeal against sentence.

(4) Quash the aggregate sentence imposed by McLennan SC DCJ on 3 March 2017.

(5) Impose an aggregate sentence of imprisonment for 3 years and 6 months to commence on 3 May 2016 and expiring on 2 November 2019 with a non-parole period of 2 years expiring on 2 May 2018.
(6) The offender will be eligible for release on parole on the expiration of the non-parole period on 2 May 2018.
Catchwords: CRIMINAL LAW – sentence appeal – alleged manifest excess – indicative sentence for do act to influence witness excessive – effective accumulation too great having regard to indicative sentences – HELD – manifest excess established – appeal allowed – sentence reduced on re-sentence
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 33, 53A
Crimes Act 1900 (NSW), ss 61, 61L, 195, 323
Criminal Procedure Act 1986 (NSW), s 166
Family Law Act 1975 (Cth)
Cases Cited: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Category: Principal judgment
Parties: Sheldon Mark Evans (Applicant)
Regina (Respondent)
Representation:
Counsel:
G D Wendler (Applicant)
M M Cinque SC (Respondent)
Solicitors:
Saba Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/23274
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

3 March 2017

Before:

McLennan DCJ SC

File Number(s):

2016/23274

Judgment

HOEBEN CJ at CL: I agree with Adamson J and the orders which she proposes.
DAVIES J: I agree with Adamson J.
ADAMSON J: The applicant seeks leave to appeal against an aggregate sentence imposed by McLennan DCJ SC in the District Court at Tamworth on 3 March 2017. The aggregate sentence was for a term of 5 years 6 months commencing 3 May 2016 with a non-parole period of 3 years 6 months. The applicant was sentenced for two counts, the first of which included four offences on a Form 1 under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). He was also sentenced for an offence of common assault which was on a certificate issued pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (the s 166 certificate).
The indicative sentences were as follows:

Count/ certificate

Offence/ date

Section/ Maximum penalty

Indicative sentence after discount of 20% for plea of guilty

Count 1

Indecent assault/ 10 January 2016

S 61L, Crimes Act 1900 (NSW)/ 5 yrs

3 years

Offences on Form 1 taken into account on sentence for Count 1

Common assault x 2/ Between July and October…

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 Evans v R

Details

AGLC: Evans v The Queen [2017] NSWCCA 281
Case: [2017] NSWCCA 281
Decision Date: 27 November 2017

CaseChat Overview and Summary

Evans, the appellant, was convicted of a crime and appealed the sentence imposed by the trial court, arguing that it was excessive. The appeal was heard by the High Court of Australia. The key issue for the court was whether the sentence was manifestly excessive, which would warrant an appeal.

The court considered whether the sentence imposed was excessive by comparing it to the indicative sentences for the offences committed. The trial court had considered the seriousness of the offence, the offender's culpability, and the need to deter the offender and others. The court held that the sentence was excessive, as it was significantly higher than the indicative sentence and took into account the need to deter the offender and others. The court further found that the accumulation of the sentences for the various offences was too great, and the effective sentence imposed was manifestly excessive. The appeal was therefore allowed, and the sentence was reduced on re-sentencing.

The High Court of Australia found that the sentence imposed by the trial court was manifestly excessive, and the appeal was allowed. The court re-sentenced the appellant to a lower sentence, which took into account the seriousness of the offence, the offender's culpability, and the need to deter the offender and others. The court emphasised the importance of ensuring that sentences imposed by the courts are not manifestly excessive and that the principles of sentencing are properly applied.

Orders