Gray v The Queen - [2018] NSWCCA 39

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Gray v R [2018] NSWCCA 39
Hearing dates: 5 March 2018
Date of orders: 06 July 2018
Decision date: 06 July 2018
Before: Macfarlan JA [1];
Johnson J [2];
Campbell J [3]
Decision:
(1) Grant leave to appeal and allow the appeal.

(2) Quash the sentence passed in the District Court on 16 December 2016 and instead sentence the applicant to an aggregate term of imprisonment under s 53A Crimes (Sentencing Procedure) Act 1999 (NSW), having a non-parole period of 3 years and 3 months commencing on 16 December 2016 and expiring on 15 March 2020 with a balance of term of 1 year and 1 month commencing on 16 March 2020 and expiring on 15 April 2021.

(3) For the purpose of s 206A Road Transport Act 2013 (NSW), the applicant is disqualified from holding a driver’s licence for a period of 18 months.
(4) The applicant will be first eligible for release on parole at the expiration of the non-parole period on 16 March 2020.
Catchwords:
CRIMINAL LAW - appeal against sentence - break and enter with intent to commit serious indictable offence - break and enter and commit serious indictable offence - guilty pleas - whether the sentencing judge erred in his assessment of objective seriousness of the property offences - individually assessed each offence at the low level - Crown conceded error - each offence being treated as aggravating by reference to s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 (NSW) - merely a degree of planning - significant value - financial gain - offending occurred on conditional liberty - significantly aggravating - no special circumstances - House v The King (1936) 55 CLR 499 error - sentencing discretion miscarried - re-exercise - lesser sentence warranted - proportionality - aggregate sentence - totality - partial accumulation - licence disqualification - reduced period

CRIMINAL LAW - appeal against sentence - whether sentencing judge erred in applying Frigiani v R [2007] NSWCCA 81 to Sequence 6 - unnecessary to consider - not satisfied sentencing judge misapplied the principle
CRIMINAL LAW - appeal against sentence - whether the sentence imposed is manifestly excessive - ‘just’ below mid-range - single episode - unnecessary to consider
Legislation Cited: Crimes Act 1900 (NSW), ss 112, 113
Criminal Appeal Act 1912 (NSW), s 5
Criminal Procedure Act 1986 (NSW), s 166
Crimes (Sentencing and Procedure) Act 1999 (NSW), ss 21A, 53A
Road Transport Act 2013 (NSW), ss 117, 206A
Cases Cited: Frigiani v R [2007] NSWCCA 81
House v The King (1936) 55 CLR 499; [1936] HCA 40
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Porter v R [2008] NSWCCA 145
Potts v R [2017] NSWCCA 10
R v Price [2016] NSWCCA 50
R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
Texts Cited: Nil
Category: Principal judgment

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 The Queen

Details

AGLC: Gray v The Queen [2018] NSWCCA 39
Case: [2018] NSWCCA 39
Decision Date: 06 July 2018

CaseChat Overview and Summary

The appellant, Gray, appealed against his sentence for break and enter with intent to commit a serious indictable offence, and break and enter and commit a serious indictable offence. The matter was heard in the New South Wales Court of Criminal Appeal. Gray had entered into guilty pleas in relation to the charges, and the Crown conceded that the sentencing judge erred in his assessment of the objective seriousness of the property offences.

The legal issues before the court were whether the sentencing judge erred in his assessment of the objective seriousness of the property offences, whether the sentencing judge erred in applying Frigiani v R [2007] NSWCCA 81 to Sequence 6, and whether the sentence imposed was manifestly excessive. The Crown conceded that the sentencing judge erred in his assessment of the objective seriousness of the property offences by individually assessing each offence at the low level, rather than treating each offence as aggravating by reference to s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court found that the sentencing judge did not misapply the principle in Frigiani v R, and that it was unnecessary to consider whether the sentence imposed was manifestly excessive, as it was ‘just’ below the mid-range for a single episode.

The court found that the sentencing judge erred in his assessment of the objective seriousness of the property offences, and that the sentencing discretion miscarried. The court re-exercised its sentencing discretion and imposed a lesser sentence, taking into account proportionality, the aggregate sentence, totality, and partial accumulation. The court also imposed a reduced period of licence disqualification. The court did not consider it necessary to direct that the case be remitted to the sentencing judge for re-sentencing.

Orders