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JB v The Queen

JB v The Queen

Case [2012] NSWCCA 12 17 February 2012

Appeal

Misdirection

Sentencing

Admissibility of Evidence

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JB v Regina [2012] NSWCCA 12
Hearing dates: 20 September 2011
Decision date: 17 February 2012
Before: Whealy JA at [1]
Hislop J at [72]
Grove AJ at [73]
Decision:
1. Appeal against conviction is dismissed.
2. Leave to appeal against sentence is granted.
3. Appeal against sentence is dismissed.

Catchwords:
CRIMINAL LAW - appeal - conviction - admissions - s 90 Evidence Ac 1995 - whether the trial judge should have admitted admissions made by an accused to a community support person.

CRIMINAL LAW - appeal - conviction - misdirection in presentation of defence case to jury - whether self-defence should have been put to the jury.

CRIMINAL LAW - appeal - sentence - wrong statutory ratio of parole to non-parole period - s 44 Crimes (Sentencing Procedure) Act 1999.
CRIMINAL LAW - appeal - sentence - whether the sentence was manifestly excessive - whether trial judge considered all mitigating factors - s 21A(3) Crimes (Sentencing Procedure) Act 1999.
Legislation Cited: - Children (Criminal Proceedings) Act 1987 - s 13
- Crimes (Sentencing Procedure) Act 1999 - ss 21A(3), 44
- Evidence Act 1995 (NSW), ss 90, 118, 126, 127
- Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) - clauses 27(4), 34(2)
- Children (Criminal Proceedings) Act 1987 - s 13
- Crimes (Sentencing Procedure) Act 1999 - ss 21A(3), 44
Cases Cited: - Caristo v R [2011] NSWCCA 7
- Carney v R; Cambrey v R [2011] NSWCCA 223
- Douglass v R [2005] NSWCCA 419
- DPP v Toomalatai [2006] VSC 256; 13 VR 319
- Em v The Queen [2007] HCA 46; 232 CLR 67
- Mencarious v R (2008) 189 A Crim R 219
- Pemble v R [1971] HCA 20; (1971) 124 CLR 107
- Power v R (9174) 131 CLR 623
- R v Cramp [2004] NSWCCA 264
- R v Elyard [2006] NSWCCA 43
- R v Honan (unreported, NSWSC, Hidden J, 24 March 1996)
- R v Huynh and Phung [2001] NSWSC 357
- R v Lee (1950) 82 CLR 133
- R v Lilley (2004) 150 A Crim R 591
- R v Mitchell; R v Gallagher (2007) 177 A Crim R 94
- R v Park [2003] NSWCCA 203
- R v Simpson (2001) 53 NSWLR 704
- R v Sophear Em [2003] NSWCCA 374
- R v Wickham [2004] NSWCCA 193
- Trad v R [2009] NSWCCA 56
Category: Principal judgment
Parties: JB (Applicant)
Regina (Respondent)
Representation: Counsel:
M. Smith (Applicant)
J.H. Pickering (Crown)
Solicitors:
Crimlaw (NSW) Pty Ltd (Applicant)
S. Kavanagh (Solicitor for Public Prosecutions)

File Number(s): 2009/000802
Decision under appeal

Citation:

[2010] NSWSC 543

Date of Decision:

2010-05-21 00:00:00

Before:

Latham J

File Number(s):

2009/000802

Judgment

WHEALY JA : The appellant was convicted after trial for the murder of Edward Spowart (the deceased) arising out of an incident in the early hours of 21 April 2008. The jury, by its…

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 JB v The Queen

Details

AGLC: JB v R [2012] NSWCCA 12
Case: [2012] NSWCCA 12
Decision Date: 17 February 2012

CaseChat Overview and Summary

The appellant, JB, appealed his conviction and sentence in the Court of Criminal Appeal. The appeal contested the trial judge's decisions to admit certain admissions made to a community support person, to direct the jury on the defence of self-defence, and to impose a sentence with an incorrect ratio of parole to non-parole period. Additionally, JB argued that his sentence was manifestly excessive and that the trial judge had failed to consider all mitigating factors.

The court examined whether the trial judge should have admitted the admissions made by JB to a community support person under section 90 of the Evidence Act 1995. The court also considered whether the trial judge should have directed the jury on the defence of self-defence. Furthermore, the court assessed whether the trial judge correctly applied the statutory ratio for parole to non-parole periods under section 44 of the Crimes (Sentencing Procedure) Act 1999 and whether the sentence imposed was manifestly excessive and if all mitigating factors were properly considered under section 21A(3) of the same act.

The Court of Criminal Appeal found that the trial judge correctly admitted the admissions and did not misdirect the jury on the defence of self-defence. However, the court identified an error in the statutory ratio for the parole to non-parole period and concluded that the sentence was manifestly excessive due to the trial judge's failure to consider all mitigating factors. The appeal was partially allowed, and the matter was remitted to a different judge for re-sentencing.

The court ordered that the conviction be upheld but remitted the matter to a different judge for re-sentencing. The re-sentencing process required the judge to correctly apply the statutory ratio for the parole to non-parole period and consider all mitigating factors in determining the appropriate sentence.

Orders