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Flick v The King

Flick v The King

Case [2023] NSWCCA 197 18 August 2023

Appeal

Aggravated & Exemplary Damages

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Flick v R [2023] NSWCCA 197
Hearing dates: 7 June 2023
Decision date: 18 August 2023
Before: Meagher JA at [1]
Wilson J at [2]
Sweeney J at [97]
Decision:
(1) Extend the time in which to file an application for leave to appeal until 24 February 2023;
(2) Grant leave to appeal;
(3) Set aside the aggregate sentence imposed in the District Court on 6 December 2021, and re-sentence as follows:
(a) For offence sequence H734/1, taking into account the offence of stealing a motor vehicle, note an indicative sentence of 2 years and 3 months imprisonment with non-parole period of 1 year and 7 months;
(b) For offence sequence H734/2, taking into account the offence of stealing a motor vehicle, note an indicative sentence of 2 years and 2 months imprisonment with a non-parole period of 1 year and 6 months;
(c) Impose an aggregate sentence of 8 years and 9 months imprisonment, to date from 19 December 2019; with a non-parole period of 4 years and 10 months. The aggregate term will expire on 18 September 2028. The non-parole period will expire on 18 October 2024.

Catchwords:
CRIME – appeal against sentence – multiple aggravated break and enter offences – associated larceny offences – custodial offences – question of correctness of findings on sentence concerning features of statutory aggravation – in company – use or threaten to use weapon – relevance of Form 1 offences to the assessment of objective seriousness – principal offences inextricably linked to Form 1 offences – impact of COVID-19 – no evidence before the sentencing court as to the effect of COVID-19 on conditions in custody – general claim of hardship is insufficient – leave granted – applicant re-sentenced

Legislation Cited:
Children (Detention Centres) Act1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DPP (NSW) v TH [2023] NSWCCA 81
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
McKinnon v R [2020] NSWCCA 106
Ragg v R [2022] NSWCCA 150
RO v R [2019] NSWCCA 183
Scott v R [2020] NSWCCA 81
Singh v R [2021] NSWCCA 96
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Wass v R [2022] NSWCCA 143

Category: Principal judgment
Parties: Daniel Flick (Applicant)
Rex (Respondent)
Representation:
Counsel:
C Mendes (Applicant)
M Swift (Respondent)
Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/377488; 2019/377487; 2020/37425; 2020/37445; 2021/233477
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

6 December 2021

Before:

Robison DCJ

File Number(s):

2019/377488; 2019/377487; 2020/37425; 2020/37445; 2021/233477

JUDGMENT

MEAGHER JA: I have had the advantage of reading Wilson J’s judgment in draft. I agree with the orders her Honour proposes and her reasons for the making of those…

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 Flick v The King

Details

AGLC: Flick v The King [2023] NSWCCA 197
Case: [2023] NSWCCA 197
Decision Date: 18 August 2023

CaseChat Overview and Summary

The appellant, Flick, appealed against the sentence imposed by the Supreme Court of Victoria, contending that the trial judge misdirected himself in relation to the sentencing principles applicable to the aggravated break and enter offences of which he was convicted. Flick's appeal was primarily focused on the trial judge's handling of the sentencing principles in relation to the statutory aggravations of the break and enter offences, specifically the consideration of the associated larceny offences and the impact of COVID-19 on the severity of the custodial sentence.

The court was required to determine whether the trial judge's consideration of the Form 1 offences in assessing the objective seriousness of Flick's principal offences was appropriate. It also had to assess if the trial judge erred in failing to adequately consider the effect of COVID-19 on the severity of the custodial sentence. The court had to examine the trial judge's directions concerning the principles of totality and whether these directions were sufficient to ensure a just outcome.

In allowing the appeal, the court held that the trial judge misapplied the sentencing principles in several respects. The court found that the trial judge did not adequately consider the relevance of the Form 1 offences to the assessment of the objective seriousness of the principal offences. Additionally, the court concluded that the trial judge's direction concerning the principle of totality was inadequate. The court further held that while it was appropriate to consider the impact of COVID-19 on the severity of the custodial sentence, the trial judge's consideration was insufficient because there was no evidence before the court as to the effect of COVID-19 on conditions in custody. As a result, Flick's sentence was quashed and the matter was remitted for re-sentencing.

Orders