Felton v The Queen - [2010] NSWCCA 79

New South Wales
Court of Criminal Appeal

CITATION: Felton v R [2010] NSWCCA 79

HEARING DATE(S): 10/02/201

JUDGMENT DATE:
7 May 2010

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; Harrison J at 49

DECISION: 1. The application for leave to appeal is granted and the appeal is allowed.
2. The sentences imposed in the District Court are quashed.
3. The following sentences are imposed:
Count 1: A fixed term of 15 months to date from 20 March 2008 and that expired on 19 June 2009.
Count 2: A fixed term of 15 months to date from 20 June 2008 and expired on 19 September 2009.
Drive disqualified: A fixed term of 6 months to date from 20 September 2009 and to expire on 19 March 2010.
Dangerous driving: A fixed term of 6 months to date from 20 January 2010 and to expire on 19 July 2010.
Count 3: A non-parole period of 12 months to commence on 20 March 2010 and to expire on 19 March 2011 with a balance of term of 12 months to commence on 20 March 2011.
The applicant is to be released to parole on 20 March 2011. It is to be a condition of his parole that he take any medication prescribed by a medical practitioner for his mental condition in accordance with the direction of the practitioner.

CATCHWORDS: CRIMINAL LAW - Sentence - take and use vehicles and traffic offences - whether offences in most serious category - whether sentences manifestly excessive in total

LEGISLATION CITED: Crimes Act 1900 - ss 19A, 154(1)(a)
Crimes (Sentencing Procedure) Act 1999 - s 61
Criminal Procedure Act 1986 - s 166

CATEGORY: Principal judgment

CASES CITED: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465
R v Twala (NSWCCA, unreported, 4 November 1994)
R v Helmsley [2004] NSWCCA 228
R v Engert (1995) 84 A Crim R 67
R v Wright (1997) 93 A Crim R 48
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

PARTIES: Shaun Peter Felton v Regina

FILE NUMBER(S): CCA 2008/13003

COUNSEL: J A Girdham - Crown
R Mathur - Applicant

SOLICITORS: S Kavanagh - Crown
S O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/13003

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 17/12/2008

2008/13003

McCLELLAN CJ at CL
HOWIE J
HARRISON J
FRIDAY 7 MAY 2010

Shaun Peter FELTON v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 HOWIE J: This is an application for leave to appeal against sentences imposed in the District Court. The applicant was sentenced by Nield DCJ (the Judge) on 17 December 2008 for three counts of take and drive a conveyance without the consent of the owner (“take and drive”) contrary to s 154A(1)(a) of the Crimes Act. There were also before the court two related matters of drive manner dangerous to the public (“dangerous driving”) 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 Felton v The Queen

Details

AGLC: Felton v The Queen [2010] NSWCCA 79
Case: [2010] NSWCCA 79
Decision Date: 7 May 2010

CaseChat Overview and Summary

The case of Felton v The Queen involved the appellant, Felton, who was sentenced to imprisonment for a series of offences related to taking and using vehicles and various traffic offences. Felton appealed against the severity of the sentences imposed, arguing that the total sentence was manifestly excessive. The High Court of Australia was tasked with reviewing the sentence and determining whether the trial judge correctly classified the offences as being in the most serious category and if the sentence was appropriately severe.

The primary legal issues the Court needed to address were whether the trial judge had correctly identified the most serious category for the offences and whether the cumulative sentence was manifestly excessive. The Court considered whether the trial judge had applied the correct legal principles and had appropriately balanced the circumstances of the offences against the need for deterrence and retribution. Additionally, the Court examined whether the trial judge had adequately justified the severity of the sentence imposed.

The Court found that the trial judge had correctly classified the offences as being in the most serious category, given the appellant's persistent criminal behaviour and the seriousness of the offences. However, the Court concluded that the total sentence was manifestly excessive. The Court emphasised the need for a holistic approach to sentencing, taking into account all relevant factors, including the nature and circumstances of the offences, the appellant's criminal history, and the principles of proportionality and justice. The Court held that the trial judge had not adequately justified the severity of the sentence, and the total punishment imposed was disproportionate to the crimes committed.

Consequently, the Court ordered a re-sentencing by the trial judge, directing that the new sentence must reflect a more balanced approach, taking into account all relevant mitigating and aggravating factors, and ensuring that the sentence was not manifestly excessive.

Orders