Basten JA at 1; RS Hulme J at 52; Schmidt J at 64; The Court at 129
Decision:
1. Answer questions 1, 2 and 3(b) in the negative and questions 3(a), 4, 5 and 6 in the affirmative.
2. Set aside the orders of the District Court.
3. Remit the matter to the District Court for disposal in accordance with law.
4. The Crown to pay the applicant's costs of the stated case.
Catchwords:
COSTS - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - whether "an appeal" within the meaning of Criminal Appeal Act 1912 (NSW), s 17 - whether costs can be ordered
CRIMINAL LAW - appeal - procedure - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - whether appropriate for trial judge to identify findings of fact other than those identified in the judgment - whether extension of time to submit stated case should be granted
CRIMINAL LAW - appeal - sentencing - application pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 - whether failure to consider facts relied upon by applicant or other relevant matters amounted to an error of law - whether failure to make factual findings and consider submissions amounted to an error of law - whether failure to consider mitigating factors specified in Crimes (Sentencing Procedure) Act, s 21A amounted to an error of law - whether s 10 is available to a person charged with a strict liability offence
CRIMINAL LAW - procedure - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - trial judge in declined to proceed with matter under Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 - whether issue not proffered for determination by the District Court can form the basis of a stated case - whether question of law arises
[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.
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AGLC
Lavorato v The Queen [2012] NSWCCA 61
Case
[2012] NSWCCA 61
Decision Date
CaseChat Overview and Summary
The case of Lavorato v The Queen involves an appeal from a decision made by the District Court of New South Wales. The appellant, Lavorato, challenges the refusal of the trial judge to order costs in a criminal matter. This case was heard under the provisions of the Criminal Appeal Act 1912 (NSW), specifically section 5B, which allows for a case to be stated to the Court of Criminal Appeal when questions of law arise from the proceedings in a lower court. The central issue before the court was whether the trial judge's refusal to order costs could be considered an error of law, and if such a refusal constituted an "appeal" under the Criminal Appeal Act. Additionally, the court had to determine whether the failure to consider certain facts and mitigating factors during sentencing amounted to an error of law under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The court examined the scope of section 5B of the Criminal Appeal Act, considering whether it was appropriate for the trial judge to identify additional findings of fact beyond those already identified in the judgment. It also assessed whether the trial judge's refusal to proceed with the matter under section 10 of the Crimes (Sentencing Procedure) Act was an error of law. The court was required to decide if the failure to make certain factual findings and consider specific mitigating factors during sentencing constituted an error of law and whether these failures amounted to a failure to consider relevant matters. Furthermore, the court deliberated on whether section 10 of the Crimes (Sentencing Procedure) Act was available to a person charged with a strict liability offence. The reasoning of the court hinged on statutory interpretation, the scope of judicial discretion in ordering costs, and the criteria for an error of law in sentencing.
In its decision, the court found that the trial judge's refusal to order costs did not amount to an error of law, and therefore, the matter was not an "appeal" under the Criminal Appeal Act. The court also determined that the issue of whether the trial judge should have made additional factual findings and considered certain mitigating factors was not an error of law, as the failure to do so did not prejudice the appellant. The court held that section 10 of the Crimes (Sentencing Procedure) Act was not available to a person charged with a strict liability offence. Consequently, the appeal was dismissed. The court declined to grant an extension of time to submit the stated case, and it was determined that the issue not proffered for determination by the District Court could not form the basis of a stated case.