Hoeben JA at [1] Johnson J at [2] Beech-Jones J at [119]
Decision:
Leave to appeal granted, appeal dismissed.
Catchwords:
CRIMINAL LAW - appeal - sentence - offences committed by sentenced prisoner following escape from correctional centre - offences of specially aggravated kidnapping, robbery, aggravated carjacking and escape lawful custody - sentences partially accumulated on existing sentences - whether error in application of totality principle - whether error in failing to find special circumstances - whether error in structure of sentences - applicant's dysfunctional upbringing and history of abuse - objective gravity of offences - relevance of institutionalisation - no error demonstrated by applicant - attention of sentencing judge not drawn to ss.56 and 57 Crimes (Sentencing Procedure) Act 1999 - failure to apply s.57(2)(b) - error favoured the applicant - appeal dismissed
James Paul Jinnette (Applicant) Regina (Respondent)
Representation:
Counsel: Mr D Barrow (Applicant) Mr E Balodis (Respondent) Solicitors: David H Cohen & Co (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2009/45181
Publication restriction:
---
Decision under appeal
Citation:
---
Date of Decision:
2010-09-10 00:00:00
Before:
His Honour Judge Colefax SC
File Number(s):
2009/45181
Judgment
HOEBEN JA: I agree with Johnson J and the orders which he proposes.
JOHNSON J: The Applicant, James Paul Jinnette, seeks an extension of time to apply for leave to appeal against sentences imposed at the Parramatta District Court on 10 September 2010.
The Applicant had pleaded guilty at the Bathurst Local Court on 1 February 2010 to the following charges:
(a)Count 1 - Escape lawful custody on 18 May 2009 contrary to s.310D(a) Crimes Act 1900 (maximum penalty of 10 years' imprisonment);
(b)Count 2 - Specially aggravated kidnapping on 19 May 2009 contrary to s.86(3) Crimes Act
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 Jinnette v R
Sign in free to access the full text
Details
AGLC
Jinnette v R [2012] NSWCCA 217
Case
[2012] NSWCCA 217
Decision Date
CaseChat Overview and Summary
The case involved an appellant who had committed a series of serious offences while on bail for an unrelated matter. The offences included specially aggravated kidnapping, robbery, aggravated carjacking, and escaping lawful custody. The appellant had a history of mental health issues, a dysfunctional upbringing, and had suffered abuse. The court was required to determine whether there were any errors in the application of the totality principle, the identification of special circumstances, and the structure of the sentences imposed. The appellant argued that the court had not adequately considered his background and the objective gravity of the offences, and that there were errors in the application of the relevant statutory provisions.
The court examined whether the totality principle was correctly applied, considering the cumulative effect of the sentences. The court also assessed whether special circumstances were present and appropriately recognised. Additionally, the court scrutinised the sentence structure to ensure it was coherent and fair. The court found that while the appellant's background was a mitigating factor, it did not justify altering the sentences significantly. The court did, however, identify an error in the application of sections 56 and 57 of the Crimes (Sentencing Procedure) Act 1999, which required the sentences to be structured in a way that reflected the seriousness of the offences and the need for general deterrence. This error, however, favoured the appellant and did not warrant the appeal's success.
Ultimately, the court concluded that despite some errors in the sentencing process, they did not reach the threshold of demonstrating a substantial injustice. Therefore, the appeal was dismissed, and the original sentences were upheld. The court emphasised the gravity of the appellant's crimes and the need to maintain public confidence in the criminal justice system. The appellant's dysfunctional upbringing and history of abuse were considered but did not alter the necessity to impose sentences that reflected the seriousness of the offences committed.