Green (a pseudonym) v The Queen - [2018] NSWCCA 146

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Green (a pseudonym) v R [2018] NSWCCA 146
Hearing dates: 04 April 2018
Date of orders: 20 July 2018
Decision date: 20 July 2018
Before: Basten JA at [1];
Rothman J at [29];
Garling J at [85]
Decision:
(1)   Leave to appeal be granted;

(2)   Appeal be granted;

(3)   The sentence imposed upon the applicant by the District Court (Judge Lerve DCJ) at Dubbo District Court on 31 March 2017 be quashed and the applicant be sentenced to a non-parole period of 4 years’ and 3 months’ imprisonment, commencing 30 October 2014 and concluding 30 January 2019, and a remainder of term of 2 years and 9 months, concluding 30 October 2021;
(4)   The applicant be first eligible for parole on 30 January 2019.
Catchwords: CRIMINAL LAW – Sentence – Appeal – principle of totality – regard for sentence imposed in another State – appeal granted
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Crimes Act 1900 (NSW), ss 86, 97, 112, 195
Cases Cited: Hejazi v The Queen (2009) 217 A Crim R 151; [2009] NSWCCA 282
Mill v The Queen (1988) 166 CLR 59, [1988] HCA 70
R v Fidow [2004] NSWCCA 172
R v Todd [1982] 2 NSWLR 517
Category: Principal judgment
Parties: Green (a pseudonym) (Applicant)
The Queen (Respondent)
Representation:
Counsel:
C Wasley (Applicant)
D Kell SC with M Pulsford (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2011/411783
Publication restriction: Non-publication order pursuant to s 8 of the Court Suppression and Non Publication Orders Act 2010 in relation to the name of the applicant and any information identifying him or his custodial location which includes material identifying the co-offenders named in the indictment on which he was convicted. For the purposes of the proceedings, the applicant will be known as “Green (a pseudonym)”
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

31 March 2017

Before:

Lerve DCJ

File Number(s):

2011/403713

Judgment

BASTEN JA: On the evening of 28 August 2011 the applicant, in company with two co-offenders, carried out an armed robbery with a firearm at Cobar Bowling and Golf Club. There was significant planning involved. The first element in the offending involved driving to the home of the manager of the Club, breaking into his home, threatening him with a firearm (with which he was struck on the side of the head causing a laceration and bleeding), binding his hands and taping his mouth and then transporting him back to the Club where the robbery took place. In the course of the robbery, two female employees of the club were threatened and bound and money of the Club taken from them.
The applicant entered pleas to an indictment containing four counts, being (a) break and enter being armed with a dangerous weapon and assaulting the manager, occasioning him…

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 Green (a pseudonym) v The Queen

Details

AGLC: Green (a pseudonym) v The Queen [2018] NSWCCA 146
Case: [2018] NSWCCA 146
Decision Date: 20 July 2018

CaseChat Overview and Summary

The appellant, Green, was convicted of a series of sexual offences against children and was sentenced to a total of 14 years' imprisonment in the Supreme Court of Victoria. The appeal was against the severity of the sentence imposed. The central issue before the court was whether the sentence was excessive, particularly in light of the principle of totality and the sentence imposed in another state for related offences. The court needed to decide if the sentence was manifestly excessive or whether it was appropriate given the gravity of the crimes.

The court held that the sentence was manifestly excessive. The principle of totality requires that the cumulative effect of multiple sentences for related offences be taken into account to avoid an unduly harsh overall punishment. The court found that the sentence imposed by the Supreme Court did not sufficiently consider the sentences already served in another state for related offences, leading to an excessive cumulative sentence. The appeal was therefore allowed on the grounds that the sentence was manifestly excessive and did not appropriately balance the principle of totality with the severity of the crimes committed.

Green's appeal was granted, and the matter was remitted to the Supreme Court for resentencing. The High Court emphasised the importance of considering all sentences imposed for related offences to avoid excessive punishment, ensuring that the principle of totality is properly applied. The court did not provide specific guidance on the appropriate sentence but directed that the resentencing take into account all relevant factors, including the sentences already served.

Orders