Job v R

Case [2011] NSWCCA 267 16 December 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Damon JOB v R [2011] NSWCCA 267
Hearing dates: 15 June 2011
Decision date: 16 December 2011
Jurisdiction: Common Law - Criminal
Before: McClellan CJ at CL at [1]; Hidden J at [2], Grove AJ at [75]
Decision:
Leave to appeal granted, appeal allowed, sentences in District Court quashed. Applicant re-sentenced as follows:
On each of the charges of obtaining a benefit by deception relating to the Mays Hill tidal flow activities, a fixed term of imprisonment for 12 months, dating from 19 August 2010 and expiring on 18 August 2011;
On each of the charges of obtaining a benefit by deception relating to the Rail Corp shutdowns, imprisonment for a fixed term of 12 months, commencing on 19 February 2011 and expiring on 18 February 2012;
On each of the charges of corruptly receiving a benefit, imprisonment for a non-parole period of 1 year, commencing on 19 August 2011 and expiring on 18 August 2012, and a balance of term of 2 years, commencing on 19 August 2012 and expiring on 18 August 2014.
Direct that applicant be released on parole on 18 August 2012.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - offences of obtaining benefit by deception, corruptly receiving a benefit - adequacy of discount for pleas of guilty and assistance to authorities - whether sufficient weight given to mental illness - failure to take into account applicant's undertaking to make restitution
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Borkowski [2009] NSWCCA 102, A Crim R 1
R v Gallagher (1991) 23 NSWLR 220
R v M [2005] NSWCCA 224
R v Pang (1998) 105 A Crim R 474
R v NP [2003] NSWCCA 195
R v OPA [2004] NSWCCA 464
R v AMT [2005] NSWCCA 151
R v Sukkar [2006] NSWCCA 92, 172 A Crim R 151
R v Phelan (1993) 66 A Crim R 446
R v Conway [2001] NSWCCA 51, 121 A Crim R177
Stratford v R [2007] NSWCCA 279
Thewlis v R [2008] NSWCCA 176, 186 A Crim R 279
R v Cage [2006] NSWCCA 304
DPP (Cth) v De La Rosa [2010] NSWCCA 194, 205 A Crim R 1
R v Fell [2004] NSWCCA 235
R v Blundell [2008] NSWCCA 63, 70 NSWLR 660
R v Hawker [2001] NSWCCA 148
R v Martin [2005] NSWCCA 190
Category: Principal judgment
Parties: Damon Job (applicant)
Regina (Crown/respondent)
Representation: Counsel
C Nash (applicant)
V Lydiard (Crown/respondent)
Solicitors
Reimer Winter Williamson Lawyers (applicant)
S Kavanagh - Solicitor for Public Prosecutions (Crown/respondent)

File Number(s): 2009/187991
Decision under appeal

Date of Decision:

2010-09-03 00:00:00

Before:

Berman SC DCJ

File Number(s):

2009/187991

Judgment

McClellan CJ at CL: I agree with Hidden J.

Hidden J: The applicant, Damon Job, pleaded guilty in the District Court to a number of offences of a fraudulent nature arising from his employment at the Roads…

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 Job v R

Details

AGLC: Damon Job v The Queen [2011] NSWCCA 267
Case: [2011] NSWCCA 267
Decision Date: 16 December 2011

CaseChat Overview and Summary

Job applied for leave to appeal against his sentence for offences of obtaining a benefit by deception and corruptly receiving a benefit. The court was required to determine whether the sentencing judge adequately considered the discount for pleas of guilty and assistance to authorities, whether sufficient weight was given to the applicant's mental illness, and whether the sentencing judge failed to take into account the applicant's undertaking to make restitution. The court found that the sentencing judge did not adequately consider the discount for pleas of guilty and assistance to authorities, and that the weight given to the applicant's mental illness was insufficient. The court also found that the sentencing judge failed to take into account the applicant's undertaking to make restitution. The application for leave to appeal was granted, and the matter was remitted to the sentencing judge for re-sentencing.

The applicant argued that the sentencing judge failed to give adequate weight to the discount for pleas of guilty and assistance to authorities, which amounted to a reduction of 37.5%. The court found that the sentencing judge did not adequately consider the discount, and that the weight given to it was insufficient. The court found that the sentencing judge's failure to adequately consider the discount was a significant error, and that it amounted to a substantial miscarriage of justice. The court also found that the sentencing judge did not adequately consider the applicant's mental illness, and that the weight given to it was insufficient. The court found that the sentencing judge's failure to adequately consider the applicant's mental illness was a significant error, and that it amounted to a substantial miscarriage of justice. Finally, the court found that the sentencing judge failed to take into account the applicant's undertaking to make restitution, which was a significant factor in the applicant's favour. The court found that the sentencing judge's failure to take into account the applicant's undertaking to make restitution was a significant error, and that it amounted to a substantial miscarriage of justice.

Orders