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Ivory v R

Ivory v R

Case [2014] NSWCCA 181 12 September 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ivory v R [2014] NSWCCA 181
Hearing dates: 6 August 2014
Decision date: 12 September 2014
Before: Hoeben CJ at CL at [1]
Adamson J at [2]
Bellew J at [3]
Decision:
1.The application for an extension of time is refused.

Catchwords:
CRIMINAL LAW - PRACTICE AND PROCEDURE - application for an extension of time in which to bring application for leave to appeal against sentence - whether period of delay adequately explained
CRIMINAL LAW - sentence - where co-offenders separately sentenced - where more serious charge laid against one offender - where factual findings different between offenders - where disparity in sentence said to have arisen as a consequence of the exercise of prosecutorial discretion - whether open to the court to go behind the exercise of discretion to determine whether a justifiable sense of grievance is made out
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Abdul v R [2013] NSWCCA 247
Alpha v R [2013] NSWCCA 292
Black v R [2013] NSWCCA 265
Delaney v R; R v Delaney [2013] NSWCCA 150
Elias v R (2013) 248 CLR 483; [2013] HCA 31
Green v R; Quinn v R (2011) 244 CLR 262; [2011] HCA 49
Jimmy v R (2010) 77 NSWLR 540
Kentwell v R; O'Grady v R [2014] HCA Trans 113
Miles v R [2014] NSWCCA 72
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Chandler; Chandler v R [2012] NSWCCA 135
R v Nguyen [2003] NSWCCA 195
Winter v R [2013] NSWCCA 231
WA v R [2014] NSWCCA 92
Category: Principal judgment
Parties: Julian Ivory - Applicant
Crown - Respondent (Crown)
Representation: Counsel:
Solicitors:
Bilbie Dan Solicitors - Applicant
S Kavanagh Solicitor for Public Prosecutions - Respondent (Crown)

File Number(s): 2010/127247
Publication restriction: Nil
Decision under appeal

Date of Decision:

2011-08-24 00:00:00

Before:

Robison DCJ

Judgment

HOEBEN CJ at CL: I agree with Bellew J.

ADAMSON J: I agree with Bellew J.

BELLEW J: On 24 August 2011 Julian Ivory ("the applicant") appeared before his Honour Judge Robison in the District Court at Newcastle and pleaded guilty to the following offences:

(i) on 3 May 2010, at Raymond Terrace in the State of New South Wales, whilst in company with Darren Delaney, he did demand money with menaces from NM with intent to steal that money (count 1);

(ii) on 4 May 2010, at Raymond Terrace in the State of New South Wales, whist in company with Darren Delaney, he did demand money with menaces from NM with intent to steal that money (count 2);

(iii) on 16 May 2010, at Minmi in the State of New South Wales, he did wound GS with intent to cause him grievous bodily harm (count 3).

The offending in each of counts 1 and 2 was contrary to s. 99(2) of the Crimes Act 1900 ("the Act") and carried a maximum penalty of…

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 Ivory v R

Details

AGLC: Ivory v R [2014] NSWCCA 181
Case: [2014] NSWCCA 181
Decision Date: 12 September 2014

CaseChat Overview and Summary

The case before the court was Ivory v R, a criminal matter in which the applicant sought an extension of time to bring an application for leave to appeal against his sentence. The applicant, who had been convicted of serious criminal offences, argued that he was entitled to an extension due to the delay in bringing the application. The respondent, the Crown, opposed the application, contending that the delay was not adequately explained.

The primary legal issues before the court were whether the period of delay in bringing the application was adequately explained and whether the court could go behind the exercise of prosecutorial discretion to determine whether a justifiable sense of grievance was made out. The court considered the principles governing the grant of extensions of time in criminal appeals and the appropriate circumstances in which the court may interfere with the exercise of prosecutorial discretion.

In considering the application for an extension of time, the court noted that there was a significant delay in bringing the application and that the applicant had not provided a satisfactory explanation for the delay. The court further found that the applicant's contention that he was entitled to an extension because his co-offender had been granted an extension was not persuasive. The court held that the applicant's delay in bringing the application was not adequately explained and that an extension of time was not warranted. The court also found that it was not open to it to go behind the exercise of prosecutorial discretion to determine whether a justifiable sense of grievance was made out. The court held that the disparity in sentence between the applicant and his co-offender did not give rise to a justifiable sense of grievance.

The court dismissed the application for an extension of time. The court held that the delay in bringing the application was not adequately explained and that an extension of time was not warranted. The court also found that it was not open to it to go behind the exercise of prosecutorial discretion to determine whether a justifiable sense of grievance was made out.

Orders