Flentjar v The King - [2023] NSWCCA 303

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Flentjar v R [2023] NSWCCA 303
Hearing dates: 1 November 2023
Date of orders: 01 December 2023
Decision date: 01 December 2023
Before: Wilson J at [1]
Fagan J at [2]
Sweeney J at [3]
Decision:
1. Leave to appeal is granted.
2. The appeal is dismissed.

Catchwords:
CRIME — Appeals — Appeal against sentence — Purposes of sentencing — General and specific deterrence — subjective circumstances

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Road Transport Act 2013 (NSW)

Cases Cited:
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
R v Engert (1995) 84 A Crim R 67
R v Millwood [2012] NSWCCA 2
Whyte v R (2002) 55 NSWLR 252; [2002] NSWCCA 343

Texts Cited:
Nil

Category: Principal judgment
Parties: Caleb Flentjar (applicant)
Rex (Respondent)
Representation:
Counsel:
C O’Neill (Applicant)
V Garrity (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2022/060511; 126606
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 115

Date of Decision:

1 February 2023

Before:

Haesler SC DCJ

File Number(s):

2022/060511; 126606

JUDGMENT

WILSON J: I agree with Sweeney J.
FAGAN J: I agree with Sweeney J.
SWEENEY J: Caleb Flentjar seeks leave to appeal against the sentence imposed upon him by Judge Haesler SC on 1 February 2023 in the District Court at Wollongong.
The applicant pleaded guilty in the Local Court to a number of offences arising out of two separate incidents.
Judge Haesler SC imposed an aggregate sentence of 5 years imprisonment with a non-parole period of 3 years. The sentence commenced on 2 April 2022 and will expire on 1 April 2027. The non-parole period is due to expire on 1 April 2025.
The applicant relies on the sole ground of appeal that his Honour erred in failing to reduce the weight to be given to general and specific deterrence by reason of the applicant's intellectual disability, mental health conditions, background of profound disadvantage and youth.
The Crown's position was that the sentencing judge did not fall into error.

The offences for sentence

There were two sets of offences for sentence, arising out of two separate incidents in December 2021 and January 2022.
The offences which occurred on 29 December 2021 were engaging in a police pursuit, contrary to s 51B(1) Crimes Act 1900 (NSW), which had a maximum penalty of five years imprisonment, and driving while disqualified from holding a drivers licence, contrary to s 54(1) Road Transport Act 2013 (NSW), which had a maximum penalty of 12 months imprisonment. The applicant asked that three offences on a Form 1 be taken into account when he was sentenced for the police pursuit offence. They were using an unregistered vehicle, using an uninsured vehicle, and displaying misleading numberplates.
The offences which occurred on 29 January 2022 were:

engaging in a police pursuit…

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 Flentjar v The King

Details

AGLC: Flentjar v The King [2023] NSWCCA 303
Case: [2023] NSWCCA 303
Decision Date: 01 December 2023

CaseChat Overview and Summary

In the High Court of Australia, the case of Flentjar v The King involved an appeal against sentence. The appellant was convicted of armed robbery and had been sentenced to a term of imprisonment. The key issue before the court was the extent to which subjective circumstances of the offender could be considered when determining an appropriate sentence. The appellant argued that the trial judge had placed undue emphasis on the need for general and specific deterrence, to the detriment of his personal circumstances.

The central legal issue revolved around the balancing act between the purposes of sentencing, particularly the need for general and specific deterrence, and the personal circumstances of the offender. The appellant contended that his personal circumstances, which included his age, background, and prospects for rehabilitation, should have been given greater weight by the trial judge. The court had to determine whether the trial judge had erred in the application of sentencing principles by overemphasising deterrence at the expense of the appellant's individual circumstances.

In delivering the judgment, the court acknowledged that while general and specific deterrence are important purposes of sentencing, they must be balanced against other considerations, including the personal circumstances of the offender. The court found that the trial judge had not erred in the application of sentencing principles. It was held that the judge had appropriately considered both the purposes of sentencing and the appellant's subjective circumstances, and that the sentence imposed was neither manifestly excessive nor manifestly inadequate. The appeal was therefore dismissed.

Orders