Davies J at [1]; Cavanagh J at [2]; Sweeney J at [88]
Decision:
(1) An extension of time to seek leave to appeal is granted.
(2) Leave to appeal is granted.
(3) The appeal is dismissed.
Catchwords:
CRIMES – appeals – application for leave to appeal against sentence – where applicant sentenced for 34 offences, including aggravated break and enter and commit serious indictable offence – whether error in relation to finding of no evidence of remorse – whether sentencing judge erred by giving insufficient regard to impact of COVID-19 – whether sentence manifestly excessive – consideration of principles of remorse – no error found in sentence imposed
Wayne Ingray (Applicant) Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel: D Carroll (Applicant) T Abdulhak (Respondent)
Solicitors: George Sten & Co Criminal Lawyers (Applicant) Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s):
2019/00050393
Publication restriction:
None
Decision under appeal
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
27 January 2023
Before:
King SC DCJ
File Number(s):
2019/00050393
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant sought leave to appeal from an aggregate sentence of 11 years and 6 months with a non-parole period of 8 years imposed upon him in the District Court in respect of a total of 34 offences committed during the period November 2018 to February 2019.
The offending was generally of a similar type in that the applicant and three co-offenders would steal motor vehicles and then drive to areas where they would target homes and businesses for the purposes of breaking into those homes and businesses and stealing goods. Some of the offending happened while persons were inside their homes.
On four separate instances, the applicant attended a private residence and was observed or engaged in a confrontation with the…
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.
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Details
AGLC
Ingray v The King [2023] NSWCCA 292
Case
[2023] NSWCCA 292
Decision Date
CaseChat Overview and Summary
The matter before the court was an application for leave to appeal against sentence, where the applicant had been sentenced for a total of 34 offences, including aggravated break and enter and commit serious indictable offence. The applicant contended that the sentencing judge erred in several respects, including finding no evidence of remorse, giving insufficient regard to the impact of COVID-19, and imposing a manifestly excessive sentence. The court was required to determine whether there were grounds for leave to appeal and, if so, whether the sentence imposed was manifestly excessive.
The court examined the principles of sentencing and the role of remorse in determining a sentence. It considered the evidence presented at the original sentencing hearing and found no error in the sentencing judge's determination that there was no evidence of remorse. The court also considered the impact of COVID-19 on the applicant's circumstances but found that this did not warrant a reduction in sentence. The court further found that the sentence imposed was not manifestly excessive, taking into account the seriousness of the offences and the need for general deterrence.
In conclusion, the court dismissed the application for leave to appeal against sentence. The court found no error in the sentence imposed and no grounds for an appeal. The original sentence was affirmed, and no further orders were made.