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Greaves v R

Greaves v R

Case [2020] NSWCCA 140 26 June 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Greaves v R [2020] NSWCCA 140
Hearing dates: 22 May 2020
Date of orders: 26 June 2020
Decision date: 26 June 2020
Before: Hoeben CJ at CL at [1]
Hamill J at [2]
Cavanagh J at [3]
Decision:
(1)   Leave to appeal is granted.
(2)   The appeal is upheld.
(3)   The sentence imposed in the District Court on 17 April 2019 is quashed.
(4)   In lieu thereof, a sentence of imprisonment of 3 years with a non-parole period of 20 months starting from 27 March 2019 is imposed.
(5)   The applicant will first be eligible for release on parole on 27 November 2020 and the head sentence will expire on 26 March 2022.

Catchwords:
SENTENCING — appeal against sentence — co-offenders — disparity between sentences — co-offenders sentenced in Local Court and applicant in District Court — where sentencing judge did not consider parity when sentencing applicant — whether justifiable sense of grievance — whether failure of applicant's counsel on sentence to raise parity should be taken as acceptance of its limited role in determination of sentence — resentencing

Legislation Cited:
Crimes Act 1900 (NSW), ss 59, 112, 117, 195
Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 5, 53A
Criminal Procedure Act 1986 (NSW), s 268

Cases Cited:
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Park v R [2020] NSWCCA 90
Pecora v The Queen [1980] VR 499
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Tisalandis [1982] 2 NSWLR 430
Re Attorney-General’s Application (No 1) under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson (1999) 48 NSWLR 327; [1999] NSWCCA 435
Scicluna v R [2008] NSWCCA 24; 181 A Crim R 133; Tobia v R [2016] NSWCCA 99
Shortland v R [2013] NSWCCA 4
Zreika v R [2012] NSWCCA 44

Category: Principal judgment
Parties: Edward Greaves (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Evers (Applicant)
G Newton (Respondent)
Solicitors:
Legal Aid Commission NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/214678
2018/294105
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 April 2019

Before:

Grant DCJ

File Number(s):

2018/214678
2018/294105

Judgment

HOEBEN CJ at CL: I agree with Cavanagh J and the orders which he proposes.
HAMILL J: I agree with the orders proposed by Cavanagh J and with his Honour’s reasons.
CAVANAGH J: The applicant, Edward Greaves, seeks leave to appeal from the sentence imposed upon him in the District Court at Sydney by his Honour, Judge…

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 Greaves v R

Details

AGLC: Greaves v R [2020] NSWCCA 140
Case: [2020] NSWCCA 140
Decision Date: 26 June 2020

CaseChat Overview and Summary

In Greaves v R, the applicant appealed against his sentence in the Supreme Court, contending that the disparity between his sentence and that of his co-offenders was unjust. The applicant and his co-offenders were involved in a crime that resulted in their sentencing in different courts. The applicant was sentenced in the District Court, while his co-offenders were sentenced in the Local Court. The applicant argued that the sentencing judge did not consider the principle of parity when sentencing him, leading to an unjust disparity. The appeal hinged on whether the sentencing judge's failure to consider parity created a justifiable sense of grievance and whether the applicant's counsel's failure to raise the issue should be taken as an acceptance of its limited role in determining the sentence.

The court examined the principle of parity in sentencing, particularly in cases involving co-offenders. It considered whether the disparity between the applicant's sentence and that of his co-offenders was unjust and whether the sentencing judge's failure to consider parity warranted resentencing. The court also analysed whether the applicant's counsel's failure to raise the issue of parity should be taken as an acceptance of its limited role in the determination of sentence.

The court concluded that the disparity between the applicant's sentence and that of his co-offenders was unjust, and the sentencing judge's failure to consider parity created a justifiable sense of grievance. The court found that the applicant's counsel's failure to raise the issue of parity should not be taken as an acceptance of its limited role in determining the sentence. Consequently, the court ordered the applicant to be resentenced, taking into account the principle of parity.

The court ordered that the applicant be resentenced by the District Court, taking into account the principle of parity and ensuring that the applicant's sentence was commensurate with that of his co-offenders. The court emphasised the importance of considering the principle of parity in sentencing, particularly in cases involving co-offenders, to ensure that sentences are just and commensurate with the circumstances of each case.

Orders