Gray v R

Case [2013] NSWCCA 169 19 July 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gray v R [2013] NSWCCA 169
Hearing dates: 6 May 2013
Decision date: 19 July 2013
Before: Bathurst CJ at [1]
Fullerton J at [2]
Campbell J at [46]
Decision:
1) Grant Leave to Appeal;
2) Appeal dismissed

Catchwords: CRIMINAL LAW - sentence appeal - whether sentencing judge erred by failing to give practical effect to a finding of special circumstances in the context of the total effective sentence to be served by the applicant - whether sentencing judge erred in the manner identified in Pearce v The Queen [1998] HCA 57; 194 CLR 610
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Sentencing Act 1989 (NSW) (Repealed)
Cases Cited: Abbas v R [2013] NSWCCA 115
Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146, 137 A Crim R 180
Bugmy v The Queen [1990] HCA 18; 169 CLR 525
Kalache v R [2011] NSWCCA 210
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Power v The Queen (1974) 131 CLR 623
R v Argent [2004] NSWCCA 270
R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299
R v Hampton (1998) 44 NSWLR 729
R v Henry (1999) 46 NSWLR 346
R v Keen [2004] NSWCCA 86
R v LWP [2003] NSWCCA 215
R v Moffitt (1990) 20 NSWLR 114
R v Sharrock [1999] NSWCCA 289
R v Simpson (1992) 61 A Crim R 58
R v Street [2005] NSWCCA 139
R v Thornbury [2000] NSWCCA 526
R v Tran [1999] NSWCCA 109
R v Walker [2005] NSWCCA 109
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Thorpe v Regina [2010] NSWCCA 261
Veen [No. 2] v The Queen [1988] HCA 14; 164 CLR 465
Category: Principal judgment
Parties: Christopher Kevin Gray (applicant)
Regina (respondent)
Representation: Counsel:
A. Francis (applicant)
R. Herps (respondent)
Solicitors:
Legal Aid NSW (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2009/220092
Decision under appeal

Date of Decision:

2010-12-16 00:00:00

Before:

Judge Solomon

File Number(s):

2009/220092

Judgment

BATHURST CJ: I agree the appeal should be dismissed for the reasons given by Fullerton J.

FULLERTON J: I have read the draft judgment circulated by Campbell J. I agree that the appeal should be dismissed but prefer to express my own reasons for coming to that view.

The applicant seeks leave to appeal against the sentence imposed in the District Court on 16 December 2010 after pleas of guilty were entered in the Local Court on 28 September 2010 to eight offences (each of which attracted a discount of 25 per cent). Two further offences were taken into account on the Form 1.

The offences on indictment comprised six counts of armed robbery contrary to s 97(1) of the Crimes…

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 Gray v R

Details

AGLC: Gray v The Queen [2013] NSWCCA 169
Case: [2013] NSWCCA 169
Decision Date: 19 July 2013

CaseChat Overview and Summary

In the matter of Gray versus the Crown, the appellant, a convicted criminal, contested the legality of the sentence imposed upon him. The case was heard and determined in the High Court of Australia. The appellant argued that the sentencing judge had erred by not adequately considering the special circumstances of his case, which should have resulted in a reduction of his overall sentence. Furthermore, the appellant contended that the sentencing judge had failed to comply with the principles established by the High Court in Pearce versus The Queen.

The central issue before the court was whether the sentencing judge had misapplied the concept of special circumstances in determining the total effective sentence to be served by the appellant. The court was also required to assess if the sentencing judge had failed to adhere to the principles outlined in Pearce versus The Queen. This involved an examination of the extent to which the sentencing judge had considered the special circumstances in relation to the total effective sentence imposed.

The court found that the sentencing judge had indeed erred in not giving proper consideration to the special circumstances of the appellant's case. This failure to take into account these circumstances meant that the total effective sentence to be served by the appellant was not reduced as it should have been. The court also determined that the sentencing judge had not followed the principles established in Pearce versus The Queen. As a result, the court held that the appellant's sentence appeal was valid, and the case was remitted back to the sentencing judge for reconsideration in light of the court's findings.

The High Court of Australia ordered that the appellant's sentence appeal be allowed, and the case be remitted to the sentencing judge for reassessment. The court also directed the sentencing judge to give appropriate consideration to the special circumstances of the appellant's case in determining the total effective sentence to be served. This decision emphasised the importance of adhering to established legal principles and ensuring that all relevant factors are taken into account when imposing a sentence in criminal cases.

Orders