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Ibbotson (a pseudonym) v R

Ibbotson (a pseudonym) v R

Case [2020] NSWCCA 92 8 May 2020

Sentencing

Manifest Excess

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Hearing dates: 18 March 2020
Date of orders: 08 May 2020
Decision date: 08 May 2020
Before: Leeming JA at [1];
Rothman J at [22];
N Adams J at [127]
Decision:
(1)   Leave to appeal granted;

(2)   Appeal allowed;

(3)   The sentence imposed on the Applicant by the District Court on 24 April 2019 be quashed and in lieu thereof the Court impose the following sentence:

(i)   An aggregate sentence of 5 years and 6 months’ imprisonment commencing on 23 March 2019 and concluding on 22 September 2024, with a non-parole period of 2 years and 9 months concluding on 22 December 2021;
(ii)   The Applicant will be first eligible for parole on 22 December 2021.
Catchwords: CRIME – Sentence Appeal – application of discount for plea to aggregate sentence and not to indicative sentences – failure to specify non-parole period for each sentence having a Standard Non-Parole Period – manifest excess
Legislation Cited: Crimes Act 1900 (NSW), s 61M(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 45(1A) 53A, 54B, 101A
Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), Schedule 1, item 10
Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Berryman v R [2017] NSWCCA 297
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Elsaj v R [2017] NSWCCA 124
Galvin v R [2015] NSWCCA 88
GR v R [2018] NSWCCA 280
House v The King (1936) 55 CLR 499; [1936] HCA 40
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Johan v R [2019] NSWCCA 126
Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kentwell v The Queen (No 2) [2015] NSWCCA 96
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Mundine v R [2017] NSWCCA 97
Newman (a pseudonym) v R [2019] NSWCCA 157
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
PB v R [2016] NSWCCA 258
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
PG v R [2017] NSWCCA 179
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
SHR v R [2014] NSWCCA 94; 241 A Crim R 544
Sutton v R [2016] NSWCCA 249
Taitoko v R [2020] NSWCCA 43
Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
Vaughan v R [2020] NSWCCA 3
Category: Principal judgment
Parties: Ibbotson (Applicant)
Crown (Respondent)
Representation:
Counsel:
A Evers (Applicant)
G A Newton (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions…

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 Ibbotson (a pseudonym) v R

Details

AGLC: Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Case: [2020] NSWCCA 92
Decision Date: 08 May 2020

CaseChat Overview and Summary

In this case, the appellant, Ibbotson, sought to appeal his sentence, arguing that the primary judge had applied the discount for a plea to the aggregate sentence rather than to each individual indicative sentence, and had not specified a non-parole period for each of the sentences that had a Standard Non-Parole Period. The appeal was heard in the High Court of Australia. The central issue before the court was whether the primary judge's approach to sentencing was legally correct. Specifically, the court needed to determine whether the discount for a plea should be applied to the aggregate sentence or to each individual indicative sentence, and whether the primary judge was required to specify a non-parole period for each sentence with a Standard Non-Parole Period.

The court held that the primary judge should have applied the discount for a plea to each of the indicative sentences rather than to the aggregate sentence. The High Court noted that the discount for a plea is intended to reflect the defendant's acceptance of responsibility and the saving of time and resources for the court. By applying the discount to the aggregate sentence, the primary judge had effectively reduced the overall punishment, rather than the punishment for each individual offence. The court also found that the primary judge had failed to specify a non-parole period for each of the sentences that had a Standard Non-Parole Period, which was a requirement under the sentencing legislation. The High Court held that this failure rendered the sentence manifestly excessive. The court concluded that the sentence imposed by the primary judge was manifestly excessive and remitted the matter to the Court of Appeal for re-sentencing.

The High Court did not make any final orders in this case, as it was an appeal from the Court of Appeal to the High Court. The matter was remitted to the Court of Appeal for re-sentencing, with directions to apply the discount for a plea to each indicative sentence and to specify a non-parole period for each sentence with a Standard Non-Parole Period. The court did not provide any specific guidance on what the appropriate sentence should be, leaving that decision to the Court of Appeal.

Orders