Garland v R - [2009] NSWCCA 217

New South Wales
Court of Criminal Appeal

CITATION: GARLAND v REGINA [2009] NSWCCA 217

HEARING DATE(S): 5 August 2009

JUDGMENT DATE:
31 August 2009

JUDGMENT OF: McClellan CJatCL at 1; Howie J at 2; McCallum J at 4

DECISION: (1) Leave to appeal granted.
(2) Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – sentencing – appeal against sentence – offender pleaded guilty to all charges – whether applicant properly represented during sentencing hearing – whether sentence manifestly excessive – extra curial punishment – backdating sentence to time of arrest – whether greater discount should have been given – extent of discount – sentence lenient in the circumstances – appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Callaghan v R [2006] NSWCCA 58; (2006) 160 A Crim R 145
R v Ah-See [2004] NSWCCA 202
Van Cuong Nyuyen v R [2008] NSWCCA 322
Yi Hong Puan v R [2000] NSWCCA 194

PARTIES: Wayne GARLAND (Applicant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2008/13811

COUNSEL: In Person (Applicant)
Ms N Norman (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/13811

LOWER COURT JUDICIAL OFFICER: Graham ADCJ

LOWER COURT DATE OF DECISION: 6 November 2008

- 12 -

2008/13844

McCLELLAN CJ at CL
HOWIE J
McCALLUM J

31 AUGUST 2009

Wayne GARLAND v R

Judgment

1 McCLELLAN CJ at CL: I agree with McCallum J.

2 HOWIE J: I have had the benefit of reading the judgment of McCallum J in draft. I agree with the orders she proposes. The sentences in my opinion were so inadequate and the sentencing remarks so obviously infested with error that it is highly likely that, if the Crown had appealed, the sentences would have been significantly increased.

3 The matters were clearly inappropriate for sentencing before the Local Court having regard to their seriousness, the applicant’s criminal record and the fact that he was on parole when he committed all the offences and on bail when he committed most of them. Therefore, the maximum sentences that would have applied had the matters been dealt with in the Local Court and the statistics for sentences imposed in that jurisdiction were totally irrelevant. Yet these were matters that weighed heavily upon the sentencing judge in determining the sentences he imposed. The “extra curial punishment” was so minor and the offences committed by the applicant so serious that it should have been given no weight at all. In my opinion the applicant should consider himself very fortunate indeed that he received such undeserved leniency.

4 McCALLUM J: Wayne Garland seeks leave to appeal against the sentences imposed upon him in the District Court on 6 November 2008.

5 The offences for which he was sentenced that day were two charges of larceny contrary to s117 of the Crimes Act 1900, which carries a maximum penalty of 5 years imprisonment, two charges of intentionally or recklessly destroying…

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 Garland v R

Details

AGLC: Garland v Regina [2009] NSWCCA 217
Case: [2009] NSWCCA 217
Decision Date: 31 August 2009

CaseChat Overview and Summary

In the matter of Garland v R, the appellant sought to appeal his sentence, which was imposed following his guilty plea to multiple charges. The case was heard in the Court of Appeal where the appellant argued that his representation during the sentencing hearing was inadequate, and that the sentence imposed was excessively harsh. The appellant also contested the application of extra-curial punishment and the decision to backdate the sentence to the time of his arrest. Furthermore, he contended that a greater discount should have been applied for his early guilty plea and that the sentence was lenient in the circumstances.

The primary legal issues that the court had to address were whether the appellant was properly represented during the sentencing hearing, whether the sentence was manifestly excessive, and the appropriateness of the discount applied for the early guilty plea. The court also had to consider the relevance of the extra-curial punishment and the decision to backdate the sentence. Additionally, the court needed to determine the appropriate extent of the discount that should have been given for the early guilty plea.

The Court of Appeal held that the appellant was adequately represented during the sentencing hearing. It found that the sentence was not manifestly excessive, and the discount for the early guilty plea was appropriate. The court also determined that the extra-curial punishment and the decision to backdate the sentence were justified. Given the totality of the circumstances, the court concluded that the sentence was lenient. Consequently, the appeal was dismissed.

Orders