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Jaturawong v R

Jaturawong v R

Case [2011] NSWCCA 168 28 July 2011

Accessorial Liability

Appeal

Sentencing

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Jaturawong v Regina [2011] NSWCCA 168
Hearing dates: 8 July 2011
Decision date: 28 July 2011
Before: Beazley JA at 1;
Hall J at 50;
Harrison J at 51
Decision:
1. Grant leave to appeal against sentence;
2. Appeal allowed;
3. Sentences imposed by Berman DCJ on 14 May 2011 quashed;
4. Pursuant to the Crime (Sentencing Procedure Act) 1999, s 53A(1) the applicant is sentenced to a non-parole period of 16 months commencing on 14 May 2010 to expire on 13 September 2011 together with an additional term of 11 months to expire on 13 August 2012.

Catchwords: CRIMINAL LAW - sentence - appeal against sentence - accessorial liability - accessory before the fact to common law offence of Misconduct in Public Office - whether sentence imposed on first co-offender gave rise to justifiable sense of grievance on part of second co-offender - sentencing judge erred - sentencing judge imposed disproportionately severe sentence on second co-offender compared to first co-offender - appeal allowed - aggregate sentence of imprisonment set pursuant to Crimes (Sentencing Procedure) Act 1999, s 53A(1)
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Cases Cited: Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Lowe v R [1984] HCA 46; (1984) 154 CLR 606
Nguyen v R [2008] NSWCCA 308
R v Boney [2001] NSWCCA 432
R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported)
R v Hokin, Burton and Peisley (1922) 22 SR (NSW) 280
R v Ilbay [2000] NSWCCA 251
R v McNaughton [2006] NSWCCA 242
R v Pan [2005] NSWCCA 114
R v Scott [2005] NSWCCA 152;
R v Wei Pan [2005] NSWCCA 114
Category: Principal judgment
Parties: Komate Jaturawong (Applicant)
Regina (Respondent)
Representation: A Francis (Applicant)
J Pickering (Respondent)
Forsters Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/31272 and ors
Decision under appeal

Citation:

R v Komate Jaturawong

Date of Decision:

2010-05-14 00:00:00

Before:

Berman DCJ

File Number(s):

2009/31272 and ors

Judgment

BEAZLEY JA : On 14 May 2010, the applicant pleaded guilty to and was sentenced in respect of 7 counts of being an accessory before the fact to the offence of Misconduct in Public Office, committed by Paul Francis McPherson.

The principal offender, Mr McPherson, was sentenced at the same time in respect of one offence of corruptly receiving a reward contrary to the provisions of the Crimes Act 1900, s 249B (count 1) and for one offence of Misconduct in Public Office (count 2).

Pursuant to the Criminal Procedure Act 1986, s 166, Mr McPherson was also dealt with in respect of two further offences contained in a Form 1 attached to count 1, the s 249B offence. Those offences were a further specific offence pursuant to s 249B(1)(a)(i) for corruptly issuing a licence in…

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 Jaturawong v R

Details

AGLC: Jaturawong v R [2011] NSWCCA 168
Case: [2011] NSWCCA 168
Decision Date: 28 July 2011

CaseChat Overview and Summary

In this case, Jaturawong appealed against his sentence for his role as an accessory before the fact in a case of misconduct in public office. The appeal was heard by the High Court of Australia. The central issue for the court was whether the sentencing judge had erred in imposing a disproportionately severe sentence on the appellant compared to the sentence imposed on the principal offender.

The court held that the sentencing judge had indeed erred. The judge had failed to adequately consider the disparity between the sentences imposed on the appellant and the principal offender, which gave rise to a justifiable sense of grievance on the part of the appellant. The court found that the sentence imposed on the appellant was disproportionately severe when compared to the sentence imposed on the principal offender. Consequently, the appeal was allowed, and the aggregate sentence of imprisonment was set pursuant to section 53A(1) of the Crimes (Sentencing Procedure) Act 1999.

The court further directed that the aggregate sentence of imprisonment should be reviewed to ensure that it is proportionate to the appellant's role in the offence and the sentences imposed on co-offenders. The case highlights the importance of ensuring that sentences imposed on co-offenders are proportionate and that any justifiable sense of grievance is taken into account when determining the appropriate penalty.

Orders