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Gurin v The The King

Gurin v The The King

Case [2022] NSWCCA 193 14 September 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gurin v R [2022] NSWCCA 193
Hearing dates: 31 August 2022
Date of orders: 14 September 2022
Decision date: 14 September 2022
Before: Beech-Jones CJ at CL at [1];
Adamson J at [2];
Campbell J at [3].
Decision:
(1) Leave to appeal from sentence granted;
(2) Appeal dismissed.

Catchwords:
CRIME – Appeals – Appeal against sentence – application of sentencing discount for the utilitarian value of a guilty plea – where first day of trial aborted due to non-attendance of the offender – whether 10% discount available upon guilty plea within 14 days of the new first day of the trial – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 45, 97
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25A, 25C, 25D
Criminal Procedure Act 1986 (NSW), ss 59, 130
Interpretation Act 1987 (NSW), ss 33, 34

Cases Cited:
Gilham v R (2007) 73 NSWLR 308; [2007] NSWCCA 323
GS v The Queen [2022] NSWCCA 65
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507; [2019] HCA 35
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Stephens v R [2022] HCA 31

Texts Cited:
New South Wales Legislative Council, Parliamentary Debates (Hansard), 18 October 2017

Category: Principal judgment
Parties: Ater Gurin (Applicant)
Regina (Respondent)
Representation:
Counsel:
S. Goodwin (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Voros Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2019/60240
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

28 October 2021

Before:

Judge O’Brien AM

File Number(s):

2019/60240

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 27 August 2021, the applicant entered a plea of guilty in the District Court to two charges of robbery in company committed on 29 November 2018. The applicant was later sentenced by O’Brien DCJ on 28 October 2021 to an aggregate term of imprisonment of 5 years and 6 months, with a non-parole period of 3 years and 2 months. His Honour allowed a 5% discount for the utilitarian value of the plea of guilty in accordance with s 25D(2)(c) Crimes (Sentencing Procedure) Act 1999 (NSW).

The history of the proceedings is that the applicant and the co-offenders were arrested on 22 February 2019, and arraigned on 25 October 2019, when he entered a plea of not guilty to each count. The trial was initially fixed to commence on 23 March 2020. On 20 March 2020, as a result of the Coronavirus pandemic restrictions on jury trials, the applicant and the remaining co-accused elected not to waive their right to a jury trial, the trial was therefore vacated, and fixed for commencement on 6 October 2020 before King DCJ.

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 Gurin v The The King

Details

AGLC: Gurin v The The King [2022] NSWCCA 193
Case: [2022] NSWCCA 193
Decision Date: 14 September 2022

CaseChat Overview and Summary

In Gurin v The King, the appellant, Gurin, was convicted of several charges related to criminal activities, including armed robbery. Gurin appealed against the sentence imposed by the court, arguing that the sentencing discount for the utilitarian value of a guilty plea should have been applied. The case was heard by the High Court of Australia. The central issue before the court was whether Gurin was entitled to a 10% discount on his sentence for pleading guilty within 14 days of the new first day of the trial, which was set after the initial trial day was aborted due to the non-attendance of Gurin.

The court considered whether the relevant provisions of the Sentencing Act entitled Gurin to the sentencing discount. The primary question was whether the 14-day period for pleading guilty started from the new first day of the trial or whether it was contingent upon the original trial date. The court needed to determine if the sentencing discount was applicable given the circumstances of the aborted trial day and the subsequent rescheduling.

The High Court held that the discount for the utilitarian value of a guilty plea was not applicable in this case. The court reasoned that the statutory provisions did not provide for the discount to be calculated from the new first day of the trial. Instead, the discount was to be applied based on the original trial date. As Gurin did not plead guilty within 14 days of the original trial date, he was not eligible for the discount. The appeal was dismissed, and the original sentence was upheld.

Orders