Grealish v R - [2013] NSWCCA 336

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: GREALISH, Peter v R [2013] NSWCCA 336
Hearing dates: 6 December 2013
Decision date: 20 December 2013
Before: Leeming JA at [1];
Adams J at [2];
Hall J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal upheld.
(3) The sentence imposed by the District Court on 26 April 2013 be quashed.
(4) The offender be re-sentenced as follows:
(i) In relation to the offence committed by the offender pursuant to s 178BB(1) of the Crimes Act 1900 on or about 6 December 2006, pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999, order that the offender enter into a good behaviour bond for a period of 18 months to commence on 26 April 2013 and to expire on 25 October 2014.
(ii) In respect of the three offences committed by the offender pursuant to s 178BB(1) of the Crimes Act 1900 on or about 29 January 2007, 20 July 2007 and 20 November 2007, an aggregate sentence of imprisonment pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 3 months to commence on 26 April 2013 and to expire on 25 July 2013.
(iii) In respect of the offence under s 107 Police Integrity Commission Act 1996, a term of imprisonment comprising a non-parole period of 8 months to commence on 26 May 2013 and to expire on 25 January 2014 with a balance of term of 10 months to expire on 25 November 2014.
The earliest date upon which the offender will be eligible for parole will be on 25 January 2014.

Catchwords: CRIMINAL LAW - sentence appeal - four counts of obtain financial advantage by false and misleading statement pursuant to s 178BB(1) of the Crimes Act 1900 - one count of giving false evidence to the Police Integrity Commission pursuant to s 107(1) of the Police Integrity Commission Act 1996 - aggregate sentence of 2 years with non-parole period of 1 year imposed - alleged failure by sentencing judge to consider whether sentence other than full-time custody would be appropriate - full-time custody was only sentencing option open to sentencing judge in relation to s 107(1) offence given its seriousness - no requirement for sentencing judge to have expressly addressed the issue of alternatives to a full-time custodial sentence in sentencing for s 107(1) offence together with other offences - alleged error by sentencing judge in finding objective criminality of s 178BB(1) offences was aggravated by the applicant's position as an officer of the Supreme Court as a liquidator - alleged that indicative sentences in respect of the s 178BB(1) offences were manifestly excessive thereby infecting the aggregate sentence imposed with error - objective seriousness and applicant's favourable subjective circumstances in relation to first s 178BB(1) offence committed could not justify the full-time custodial sentence of 9 months indicated - indicative sentence of 9 months' imprisonment for each s 178BB(1) offence manifestly excessive given circumstances of…

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 Grealish v R

Details

AGLC: Grealish v R [2013] NSWCCA 336
Case: [2013] NSWCCA 336
Decision Date: 20 December 2013

CaseChat Overview and Summary

The applicant, Grealish, appealed against the sentence imposed by the District Court, which found him guilty of four counts of obtaining a financial advantage by false and misleading statements, and one count of giving false evidence to the Police Integrity Commission. The appeal focused on the alleged failure of the sentencing judge to consider whether a sentence other than full-time custody would be appropriate, particularly in light of the seriousness of the offence under s 107(1) of the Police Integrity Commission Act 1996. Grealish argued that the sentencing judge did not adequately consider the possibility of an alternative sentence and that the objective criminality of the offences was exacerbated by his position as an officer of the Supreme Court. He further contended that the indicative sentences for the s 178BB(1) offences were manifestly excessive, thereby impacting the aggregate sentence.

The court examined whether the sentencing judge should have considered alternatives to full-time custody, given that such alternatives were precluded by the seriousness of the offence under s 107(1). The court held that while there was no requirement for the sentencing judge to expressly address the issue of alternatives, the consideration of such alternatives was inherently part of the sentencing process. The court also addressed the alleged error in finding that the objective criminality of the s 178BB(1) offences was aggravated by the applicant's position as a liquidator. The court found that although the sentencing judge erred in this regard, it did not warrant a lesser sentence for the s 107(1) offence, as the indicative sentence for this offence was deemed appropriate. Additionally, the court found that the sentencing judge's finding of a greater obligation on the applicant to not give false sworn evidence compared to another offender in a related case was erroneous, but again, this did not necessitate a lesser sentence for the s 107(1) offence.

The court ultimately determined that while errors were present in the sentencing process, they did not warrant a reduction in the sentence imposed. The applicant was re-sentenced accordingly, maintaining the aggregate sentence of two years with a non-parole period of one year.

Orders