Haydon v The Queen - [2012] NSWCCA 151

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Haydon v R [2012] NSWCCA 151
Hearing dates: 18 June 2012
Decision date: 16 July 2012
Before: McClellan CJ at CL
Price J
Button J
Decision:
1. Leave to appeal granted. 2. Appeal dismissed. 3.The commencement date of the sentence imposed by McLoughlin DCJ for the aggravated break and enter contrary to s 113(2) Crimes Act be varied pursuant to s 52 Crimes (Sentencing Procedure) Act so that the sentence is imprisonment for 3 years 3 months consisting of a non-parole period of 2 years 2 months commencing on 25 June 2012 and expiring on 24 August 2014 with a balance of term of 1 year 1 month expiring on 24 September 2015.

Catchwords: CRIMINAL LAW - appeal - sentencing - parity - application of s 52 Crimes (Sentencing Procedure) Act to correct commencement date of sentence.
Legislation Cited: Crimes Act 1900 s 112(1)(a), s 113(2),
s 154A(1)(a), s 189,
Crimes (Sentencing Procedure) Act 1999
s 52(1)
Road Transport (Vehicle Registration) Regulation 2007 s 85(2)(a)
Cases Cited: Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Ilbay [2000] NSWCCA 251
R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7
R v Kollas and Mitchell [2002] NSWCCA 491
Category: Principal judgment
Parties: .
Representation: Ms A Francis (applicant)
Mr R Herps (respondent)
B Sandland (applicant)
S Kavanagh (Solicitor for Public Prosecutions)

File Number(s): 2010/249099
Decision under appeal

Citation:

R v Haydon

Date of Decision:

2010-12-17 00:00:00

Before:

McLoughlin DCJ

File Number(s):

2010/249099

Judgment

McClellan CJ at CL: I agree with Price J.

Price J: Matthew Haydon seeks leave to appeal against the sentence imposed upon him in the District Court on 17 December 2010.

The applicant had adhered in the District Court to a plea of guilty entered in the Local Court to a charge of aggravated break and enter with intent to commit a serious indictable offence, namely larceny, on 27 May 2010 contrary to s 113(2) Crimes Act 1900. The circumstances of aggravation were that he was in company with the co-offender David Davis. The maximum penalty for such an offence is 14 years imprisonment.

Three matters on a Form 1 were taken into account by the Judge on sentence for the s 113(2) offence, being:

(i)take and drive a white Toyota Hilux on 27 May 2010 without the consent of the owner contrary to s 154A(1)(a) Crimes Act, the maximum penalty for which is 5 years imprisonment;

(ii)receiving a bullbar between 10 April 2010 and 14 April 2010 knowing it to have been stolen contrary to s 189 Crimes Act, the maximum penalty for which is 3 years imprisonment and;

(iii)display altered number plate on 27 May 2010 contrary to s 85(2)(a) Road Transport (Vehicle Registration) Regulation 2007. This offence is punishable by 20 penalty units.

The applicant was sentenced to…

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 Haydon v The Queen

Details

AGLC: Haydon v The Queen [2012] NSWCCA 151
Case: [2012] NSWCCA 151
Decision Date: 16 July 2012

CaseChat Overview and Summary

The appeal heard by the court involved Haydon, the appellant, against The Queen, the respondent. The case revolved around the sentencing phase of Haydon's criminal proceedings, specifically questioning the application of section 52 of the Crimes (Sentencing Procedure) Act in correcting the commencement date of his sentence. This matter was determined in the High Court of Australia.

The legal issues before the court were whether section 52 of the Crimes (Sentencing Procedure) Act applied to rectify the commencement date of Haydon's sentence and whether the application of this section was consistent with the principle of parity in sentencing. The court needed to establish whether the correction of the sentence commencement date was permissible under the statute and if such correction aligned with the principle that ensures like cases are treated alike.

The court concluded that section 52 of the Crimes (Sentencing Procedure) Act was indeed applicable to correct the commencement date of Haydon's sentence. The reasoning was that the provision allowed for the correction of errors in sentencing, thereby ensuring that the sentence accurately reflected the intention of the court. The court further found that this correction did not breach the principle of parity, as it was a procedural adjustment rather than a substantive change to the sentence. The decision thus upheld the correction as a legitimate application of the statute without infringing on the principle of parity.

The final orders of the court were that the appeal be dismissed, and the correction of the commencement date of Haydon's sentence, as per section 52 of the Crimes (Sentencing Procedure) Act, was affirmed.

Orders