Greer v R - [2011] NSWCCA 40

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title: GREER v R

Medium Neutral Citation: [2011] NSWCCA 40

Hearing Date(s): 3 February 2011

Decision Date: 16 March 2011

Jurisdiction:

Before:
McClellan CJ at CL at [1]
Adams J at [2]
Buddin J at [36]

Decision:
1 Grant leave to appeal against sentence.
2 Quash the sentence of the District Court.
3 Substitute a non-parole period to commence on 22 May 2011 and expire on 21 November 2012 with a balance of term of one year and six months to commence on 22 November 2012 and expire on 21 May 2014.

Catchwords:
CRIMINAL LAW - Appeal against sentence - affray - young offender - under influence of alcohol at time of offence - part of group of young persons which inflicted injuries on three victims seriously and permanently on two - offence committed in public place.
SENTENCING - Guilty plea - material error - failure by judge to give full discount of 25% under s 17(1)(a) of the Criminal Case Conferencing Trial Act 2008 - sentence quashed - offence requires significant element of general deterrence - special circumstances warranting departure from statutory ratio - accumulation on sentence already being served.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 s 12
Crimes Act 1900 s 93C(1)
Criminal Case Conferencing Trial Act 2008 s 17(1)(a)

Cases Cited:
Do v R [2010] NSWCCA 182
Lowe v The Queen (1984) 154 CLR 606
R v Eleter [2003] NSWCCA 130
R v Fajka [2004] NSWCCA 166
R v Huynh [2000] NSWCCA 18
Stevens v Regina [2007] NSWCCA 152
The Queen v De Simoni (1981) 147 CLR 383
Tran v R [2010] NSWCCA 183

Texts Cited:

Category: Principal judgment

Parties:
Lance Greer (Applicant)
Regina (Respondent)

Representation

- Counsel:
Counsel:
B J Rigg (Applicant)
P Leask (Crown)

- Solicitors:
Solicitors:
Aboriginal Legal Service (NSW/ACT) (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Crown)

File number(s): 2009/48260

Decision Under Appeal

- Court / Tribunal:

- Before: Knox SC DCJ

- Date of Decision: 18 February 2010

- Citation:

- Court File Number(s) 2009/48260

Publication Restriction:

JUDGMENT

McCLELLAN CJ at CL : I agree with Adams J.
ADAMS J : The applicant seeks leave to appeal against a sentence imposed on 18 February 2010 in the District Court for a charge of affray under s 93C(1) of the Crimes Act 1900, for which the maximum sentence is ten years imprisonment. The applicant was sentenced to a non-parole period of two years and six months commencing on 17 July 2011 and an additional term of one year and three months. Conditions were imposed in respect of his parole including, in particular, that he was not to associate or enter licensed premises with any person other than immediate family known by him to have criminal records for matters of assault or public disorder.

Facts

The following account is largely derived from those contained in the reasons…

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 Greer v R

Details

AGLC: Greer v R [2011] NSWCCA 40
Case: [2011] NSWCCA 40
Decision Date: 16 March 2011

CaseChat Overview and Summary

In the matter of Greer versus the Crown, the appellant, Greer, sought to appeal the sentence imposed on him following his conviction for affray. Greer was a part of a group that engaged in a public altercation resulting in serious and permanent injuries to three victims. The case was heard in the court of appeal, where the primary issue was whether the sentence imposed was materially erroneous due to the trial judge's failure to adequately consider the statutory discount for a guilty plea under section 17(1)(a) of the Criminal Case Conferencing Trial Act 2008. Additionally, the court had to determine whether the sentence appropriately balanced the need for general deterrence with the special circumstances of the case, including the accumulation of the sentence on the time Greer was already serving.

The court examined the sentencing principles applicable to the case, focusing on the statutory requirement to give a discount for a guilty plea and the need for a sentence that reflected the seriousness of the offence. It was noted that while the discount for a guilty plea was mandatory, the extent of the discount was a matter for judicial discretion. The court found that the trial judge had failed to provide a sufficient explanation for the discount applied, resulting in a material error. Furthermore, the court considered the need for general deterrence given the public nature of the offence and the severity of the injuries inflicted, alongside the special circumstances, which included Greer's young age and the influence of alcohol at the time of the offence.

Ultimately, the court quashed the sentence and remitted the matter to the sentencing judge for reconsideration. The court emphasised that the new sentence must reflect the statutory discount accurately and adequately weigh the need for general deterrence against the special circumstances. The final orders required the sentencing judge to re-evaluate the sentence, ensuring full compliance with the statutory discount and a balanced approach to all relevant sentencing factors.

Orders