Gal v R

Case [2015] NSWCCA 242 9 September 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gal v R [2015] NSWCCA 242
Hearing dates: 20 August 2015
Date of orders: 09 September 2015
Decision date: 09 September 2015
Before: Bathurst CJ   at [1]
Price J   at [2 ]
Beech-Jones J   at [3]
Decision:
(1)   Leave to appeal be granted;
(2)   The Appeal be dismissed.

Catchwords: SENTENCE APPEAL – break and enter – no assessment of objective seriousness by sentencing judge – no reference to facts of offence – reference to seriousness in course of argument – error demonstrated – if sentencing discretion re-exercised higher sentence would be imposed – appeal dismissed.
Legislation Cited: - Crimes (Sentencing Procedure) Act 1999 – s 9, 21A(2)(j)
- Criminal Appeal Act 1912 - s 6(3)
Cases Cited: - Attorney General’s Application (No 1) under s 26 of the Criminal Procedure Act, Re; R v Ponfield; R v Scott; R v Ryan; R v Johnson [1999] NSWCCA 435; 48 NSWLR 327
- Cowan v R [2015] NSWCCA 118
- Cullen v R [2014] NSWCCA 162
- Delaney v R; R v Delaney [2013] NSWCCA 150
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- O’Grady v R [2015] NSWCCA 168
- Opacic v R [2013] NSWCCA 294
- R v Campbell [2014] NSWCCA 102
Category: Principal judgment
Parties: Jay Clifford Gal - Applicant
The Queen – Respondent
Representation:
Counsel:
G.A. Brady – Applicant
Ms T. Smith – Respondent
Solicitors:
Conaghan Lawyers – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s): 2012/389366
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

6 August 2014

Before:

Toner DCJ

Judgment

BATHURST CJ: I agree with the orders proposed by Beech-Jones J and with his Honour’s reasons.
PRICE J: I agree with Beech-Jones J.
BEECH-JONES J: This is an application for leave to appeal from sentences imposed by the District Court on 6 August 2014 in respect of two charges of breaking, entering and stealing, one of which was committed in circumstances of aggravation.
The substance of the application is that the sentencing judge failed to address the objective seriousness of the offences or, in the alternative, failed to give reasons stating what that assessment was. For the reasons that follow, I consider that this contention should be upheld and that error in the sentencing process is established. However upon a fresh exercise of the power to impose a sentence I consider that the “same sentence or a greater sentence is the appropriate sentence” (Criminal Appeal Act 1912; s 6(3); Kentwell v The Queen [2014] HCA 37 at [43]; “Kentwell”). This has the consequence that, although I consider leave to appeal should be granted, the appeal should be dismissed.

Background

On 6 August 2014 the applicant was sentenced in the District Court on two charges. The first was that he did on 16 December 2012 break, enter and steal from a home…

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 Gal v R

Details

AGLC: Gal v R [2015] NSWCCA 242
Case: [2015] NSWCCA 242
Decision Date: 09 September 2015

CaseChat Overview and Summary

The appellant, Gal, appealed against his sentence for a break and enter offence, arguing that the sentencing judge had failed to properly assess the objective seriousness of the offence. The case was heard by the High Court of Australia. The appellant submitted that the sentencing judge did not consider the facts of the offence or provide any reasons for the sentence imposed. Instead, the judge referred to the seriousness of the offence during the course of argument, which the appellant argued was an error.

The central legal issue before the court was whether the sentencing judge's failure to properly assess the objective seriousness of the offence constituted a significant error that warranted an appeal. The court needed to determine if the error was such that if the sentencing discretion was re-exercised, a higher sentence would be imposed. The court considered whether the failure to properly assess the objective seriousness of the offence was a material error that affected the sentence imposed.

The court found that the sentencing judge's failure to properly assess the objective seriousness of the offence was indeed a significant error. The court acknowledged that the error demonstrated that if the sentencing discretion was re-exercised, a higher sentence would be imposed. However, the court held that the error did not affect the overall sentence imposed by the judge, as the sentence was within the appropriate range for the offence. Consequently, the appeal was dismissed.

No further orders were made by the court.

Orders