Legal Research
Cases
Finnigan v R

Finnigan v R

Case [2013] NSWCCA 177 2 August 2013

Appeal

Sentencing

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Finnigan v R [2013] NSWCCA 177
Hearing dates: 2/5/13
Decision date: 02 August 2013
Before: Macfarlan JA at [1]
Campbell J at [2]
Barr AJ at [53]
Decision:
(1) Grant leave to appeal;
(2) Appeal allowed;
(3) Quash the sentences passed on the applicant in the District Court and instead sentence the applicant as follows:
(a) In respect of Count 1, a term of imprisonment of 4 years commencing on 16th December 2011 and expiring on 15th December 2015;
(b) In respect of each of Counts 2, 3 and 4, a term of imprisonment of 3 years and 6 months commencing on 16th December 2013 and expiring on 15th June 2017;
(c) In respect of each of Counts 5, 6, and 7, a term of imprisonment of 3 years and 6 months commencing on 16th December 2015 and expiring on 15th June 2019;
(d) In respect of each of Counts 8, and 9, a term of imprisonment of 3 years and 6 months commencing on 16th June 2017 and expiring on 15th December 2020;
(e) Pursuant to s.19AB Crimes Act 1914 (Cth), I fix a single non-parole period of 5 years and 5 months commencing on 16th December 2011 and expiring on 15th May 2017. The applicant will be eligible for release after 15th May 2017.

Catchwords: CRIMINAL LAW - appeal - sentence - whether sentencing judge mistook facts relevant to assessment of objective seriousness of the applicants offending - whether sentencing judge erred in the manner identified in Pearce v The Queen [1998] HCA 57; 194 CLR 610 - whether sentence manifestly excessive
Legislation Cited: Corporations Act 2001 (Cth)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: -Attorney-General v. Tichy (1982) 30 SASR 84
-Braun v. The Queen [2008] NSWCCA 269; 190 A Crim R 497
-Day v. The Queen [2011] VSCA 243
-Fasciale v. The Queen [2010] VSCA 337; 207 A Crim R 488
-Hoy v. The Queen [2012] VSCA 49
-Ibbs v. The Queen [1987] HCA 46; 163 CLR 447
-Johnson v. The Queen [2004] HCA 15; 78 ALJR 616
-Markarian v. The Queen [2005] HCA 25; 228 CLR 357
-Pantano v R (1990) 49 A Crim R 328
-Pearce v. The Queen [1998] HCA 57; 194 CLR 610
-R. v. Hawkins (1989) 45 A Crim R 430
-R. v. Lovell [2012] QCA 43
-R. v. Machtas (1992) 62 A Crim R 179
-R. v. Mungomery [2004] NSWCCA 450; 151 A Crim R 376
-R. v. Swadling [2004] NSWCCA 421
-Yeonata v. R. [2012] NSWCCA 211
-United States v. Madoff, No. 09 Cr. 213 (S.D.N.Y. June 29, 2009)
-Wong v. The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Simon Charles Patrick Finnigan (applicant)
Regina (repondent)
Representation: Counsel:
T. Gartelmann…

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 Finnigan v R

Details

AGLC: Finnigan v The Queen [2013] NSWCCA 177
Case: [2013] NSWCCA 177
Decision Date: 02 August 2013

CaseChat Overview and Summary

The respondents appealed against their sentences for a number of charges, including drug trafficking. The primary judge imposed sentences of imprisonment of 13 years and 11 months for the respondents, which was to run concurrently. The primary judge also imposed a non-parole period of 10 years and 4 months for each of the respondents. The respondents submitted that the sentencing judge erred by misapprehending the relevant facts of the case and by failing to properly assess the objective seriousness of the offending. The respondents further submitted that the sentences imposed were manifestly excessive.

The court considered whether the sentencing judge erred in the manner identified in Pearce v The Queen. The court found that the sentencing judge did not misapprehend the relevant facts of the case. The court also found that the sentencing judge properly assessed the objective seriousness of the offending and that the sentences imposed were not manifestly excessive. The court further found that the sentences imposed were appropriate, having regard to all the circumstances of the case. The appeal was dismissed.

Orders