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Jansen v R

Jansen v R

Case [2013] NSWCCA 301 3 December 2013

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Court of Criminal Appeal

New South Wales

Case Title: Jansen v Regina

Medium Neutral Citation: [2013] NSWCCA 301

Hearing Date(s): 8/7/2013

Decision Date: 03 December 2013

Before: Basten JA at [1];
Price J at [2];
Campbell J at [3]

Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - guilty plea to one count of misconduct in public office - further offences on Form 1 - related offences on s166 Certificate - whether applicant has a justifiable sense of grievance as a result of disparity between his sentence and sentence imposed upon co-offender - whether sentencing judge erred in failing to consider maximum penalties for relevant statutory offences as a reference point or guide to the imposition of sentence - whether sentence manifestly excessive

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Police Act 1990 (NSW)

Cases Cited: Blackstock v Regina [2013] NSWCCA 172
Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194; 243 FLR 28
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
House v The King [1936] HCA 40; 55 CLR 499
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Farrell (unreported) District Court of NSW, 13th February 2013
R v Hokin, Burton and Peisley (1922) 22 SR (NSW) 280
R v Hughes (unreported), District Court of NSW, 28th March 2013
R v Jaturawong [2011] NSWCCA 168
R v Windle [2012] NSWCCA 222
Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381
Thompson-Davis v R [2013] NSWCCA 75
Wong v R [2001] HCA 64; 207 CLR 584

Category: Principal judgment

Parties: Steve Phillip Jansen (Applicant)
Regina (Crown)

Representation

- Counsel: Counsel:
P Hamill SC (Applicant)
T Smith (Crown)

- Solicitors: Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/84572

Decision Under Appeal

- Before: Judge Sides QC

- Date of Decision: 05 June 2012

- Court File Number(s): 2011/84572

JUDGMENT

BASTEN JA: I agree, for the reasons given by Campbell J, that the applicant should have leave to appeal against his sentence, but that the appeal should be dismissed.
PRICE J: I agree with Campbell J.
CAMPBELL J: The applicant seeks leave to appeal from the sentence passed on him in the District Court of New South Wales on Friday 5th June 2012 by his Honour Judge Sides QC. The applicant pleaded guilty to one count of misconduct in public office as a member of the New South Wales Police Force. At the applicant's request, six further offences were taken into account on a Form 1 under s.33 Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act). Moreover, there were six related offences on a Certificate under s166 Criminal Procedure Act 1986 (NSW) transferred to the District Court.
For 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.

Continue reading Jansen v R

Details

AGLC: Jansen v Regina [2013] NSWCCA 301
Case: [2013] NSWCCA 301
Decision Date: 03 December 2013

CaseChat Overview and Summary

In this matter, the applicant, Jansen, appealed against his sentence, having pleaded guilty to one count of misconduct in public office. The case was heard in the High Court of Australia, where the legal issues centred on the fairness and appropriateness of the sentence imposed by the sentencing judge. Specifically, the appeal contested whether the applicant had a justifiable sense of grievance due to a perceived disparity in sentencing between him and his co-offender. Additionally, it was argued that the sentencing judge had erred by not considering the maximum penalties for the relevant statutory offences as a reference point or guide for the sentence imposed.

The court examined whether the sentence was manifestly excessive. It considered the disparity in sentencing between the applicant and his co-offender, as well as the failure of the sentencing judge to use the maximum penalties for the relevant statutory offences as a reference point. The court concluded that the disparity in sentencing did not amount to a justifiable sense of grievance on the part of the applicant, as the sentencing judge had appropriately considered the unique circumstances of each offender. Furthermore, the court found that the sentencing judge did not err in not using the maximum penalties for the statutory offences as a reference point, as the primary focus should be on the individual circumstances of the offender and the principles of sentencing.

Ultimately, the appeal was dismissed, and the original sentence was upheld. The court affirmed that the sentence was appropriate and not manifestly excessive, taking into account the unique circumstances of the applicant and the principles of sentencing. No further orders were made by the court.

Orders