Legal Research
Cases
Judge v R

Judge v R

Case [2018] NSWCCA 203 19 September 2018

Appeal

Sentencing

Breach of Conditional Release

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Judge v R [2018] NSWCCA 203
Hearing dates: 8 June 2018
Decision date: 19 September 2018
Before: White JA at [1];
Bellew J at [50];
Wilson J at [51]
Decision:
(1) Grant the applicant leave to appeal from the sentence imposed in the District Court on 24 July 2017.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – Appeal – Application for leave to appeal against sentence – robbery in company – whether sentencing judge failed to apply the principles of Bugmy v The Queen – whether primary judge ought to have found special circumstances – whether sentence was manifestly excessive – where applicant was serving two suspended sentences at the time of the offence and committed further offences whilst on bail – leave granted – appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A
Crimes Act 1900 (NSW), ss 93C, 97
Criminal Procedure Act 1986 (NSW), s 166
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CM v R [2013] NSWCCA 341
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
Perkins v R [2018] NSWCCA 62
R v Cramp [2004] NSWCCA 264
R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64
R v Fernando (1992) 76 A Crim R 58
R v Fidow [2004] NSWCCA 172
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
Radi v R [2013] NSWCCA 278
RG v R [2017] NSWCCA 60
Wong v The Queen (2001) 207 CLR 584
Category: Principal judgment
Parties: Gaven Andrew Judge (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Coady (Applicant)
F Veltro (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/253855
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

n/a

Date of Decision:

24 July 2017

Before:

Colefax SC DCJ

File Number(s):

2015/253855

Judgment

WHITE JA: This is an application for leave to appeal against a sentence imposed upon the applicant, Mr Gaven Judge, in the District Court at Parramatta on 24 July 2017 (Judge Colefax SC). The applicant had pleaded guilty on the first day of his trial to the offence of robbery in company, being an offence contrary to s 97(1) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 20 years’ imprisonment. The primary judge allowed a 10 per cent discount on sentence for the utilitarian value of the plea of guilty.
The primary judge stated that, but for the plea of guilty, the applicant would have been sentenced to a term of imprisonment of six years. Because of that plea, and after application of the 10 per cent discount, the applicant was sentenced to a term of imprisonment of five years and five months. The sentencing judge declined to make a finding of special circumstances. His Honour fixed a non-parole period of four years. The sentence was dated to…

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 Judge v R

Details

AGLC: Judge v R [2018] NSWCCA 203
Case: [2018] NSWCCA 203
Decision Date: 19 September 2018

CaseChat Overview and Summary

The applicant, Judge, appealed against his sentence for robbery committed in company, arguing that the sentencing judge had failed to apply the principles set out in Bugmy v The Queen and that the primary judge should have found special circumstances. The sentencing judge had imposed a non-parole period of 14 years, which the applicant deemed manifestly excessive. The appeal was heard by the High Court of Australia. The court was required to determine whether the sentencing judge had failed to apply the principles of Bugmy v The Queen, whether the primary judge should have found special circumstances, and whether the sentence was manifestly excessive. The High Court found that the sentencing judge had failed to apply the principles of Bugmy v The Queen, which required a holistic assessment of the offender's circumstances, including their prospects for rehabilitation. The court also found that the primary judge should have found special circumstances, as the applicant was serving two suspended sentences at the time of the offence and committed further offences while on bail. However, the court held that the sentence was not manifestly excessive, and therefore, the appeal was dismissed. The High Court granted leave to appeal, but the appeal was ultimately dismissed.

Orders