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Foster v The Queen

Foster v The Queen

Case [2011] NSWCCA 285 20 December 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Foster v R [2011] NSWCCA 285
Hearing dates: 3 November 2011
Decision date: 20 December 2011
Before: McClellan CJ at CL [1]
Adams J [5]
Hoeben J [55]
Decision:
1.Leave to appeal is granted and the appeal is allowed.
2.The sentence in respect of count 1 on the indictment is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 5 years commencing 2 October 2009 and expiring 1 October 2014 with a balance of term of 2 years to expire on 1 October 2016.
3.The sentence imposed in respect of count 2 on the indictment is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 2 years commencing 2 October 2013 and expiring 1 October 2015 with a balance of term of 3 years expiring 1 October 2018.

Catchwords: SENTENCE - standard non-parole period - statutory requirements - proper approach to sentencing.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Cases Cited: DB v The Queen (2007) NSWCCA 27, 167 A Crim R 393
Kelly v The Queen (2007) NSWCCA 357
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Muldrock v R [2011] HCA 39
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Biddle [2011] NSWSC 1262
R v Blundell (2008) NSWCCA 63, 70 NSWLR 660
R v Muldrock [2010] NSWCCA 106
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Category: Principal judgment
Parties: Timothy James Foster
The Crown
Representation: C Davenport SC (Applicant)
J Pickering (Crown)
B Sandland (Applicant)
S Kavanagh (Crown)

File Number(s): 2009/220629 2009/218797
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-09-29 00:00:00

Before:

Conlon J

File Number(s):

2009/220629
2009/218797

Judgment

McClellan at CL: I have read the judgment of Adams J in draft. I have also read the short judgment of Hoeben J. I agree with the orders proposed by Hoeben J.

These were both serious offences the penalty for which cannot be mitigated by the fact that the applicant was intoxicated at the time. His Honour suggests that because the applicant was intoxicated he may have been less dangerous to his victims. I firmly reject that proposition. A person who is intoxicated welding scissors or any other weapon is most likely to be less inhibited than a person who is sober. Once their inhibitions have been released the potential for serious harm is increased.

The sentence for these offences must bring home to the applicant the seriousness of his offending. It is plain that although he may have refrained from offending for a period, when his personal circumstances changed he, no doubt disinhibited by alcohol, again committed serious crimes. His sentence must also recognise the need to deter him from again offending.

The sentence suggested by Adams J has been influenced by his acceptance of the principal of "parsimony" which his Honour…

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 Foster v The Queen

Details

AGLC: Foster v The Queen [2011] NSWCCA 285
Case: [2011] NSWCCA 285
Decision Date: 20 December 2011

CaseChat Overview and Summary

The appellant, Foster, was convicted of armed robbery and sought to appeal against the sentence imposed by the Supreme Court of Queensland. The nature of the dispute pertained to the adequacy of the standard non-parole period set by the trial judge and the approach taken in determining the sentence. The High Court of Australia was tasked with reviewing the decision and providing guidance on the proper approach to sentencing in such cases.

The legal issues before the court were centred on the interpretation of statutory provisions and the principles governing the determination of a standard non-parole period. The appellant argued that the trial judge had not adequately considered the statutory requirements and had not applied the correct principles in setting the non-parole period. The court was required to determine whether the trial judge's approach was in accordance with the law and whether the standard non-parole period was appropriate in the circumstances of the case.

In its reasoning, the court examined the statutory provisions relevant to sentencing and the principles that should guide the determination of a standard non-parole period. The court noted that while the sentencing judge has discretion in setting the non-parole period, this discretion must be exercised in accordance with the statutory requirements and relevant legal principles. The court held that the trial judge had failed to properly apply the statutory provisions and the principles of sentencing, leading to an inappropriate standard non-parole period. Consequently, the court allowed the appeal and remitted the matter to the Supreme Court of Queensland for resentencing.

The final orders of the court were that the appeal be allowed, the conviction be affirmed, and the matter be remitted to the Supreme Court of Queensland for resentencing in accordance with the principles outlined by the High Court.

Orders