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Little v R

Little v R

Case [2018] NSWCCA 63 16 April 2018

Sentence Appeal

Commencement Date of Sentence

Backdating Sentence

Totality Considerations

Re-sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Little v R [2018] NSWCCA 63
Hearing dates: 19 March 2018
Date of orders: 16 April 2018
Decision date: 16 April 2018
Before: Hoeben CJ at CL at [1];
Johnson J at [51];
Price J at [53]
Decision:
(1)   The sentence imposed by Frearson SC DCJ on 23 June 2016 is quashed.
(2)   In lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 5 years, commencing 13 September 2015 and expiring 12 September 2020, with a balance of term of 2½ years expiring on 12 March 2023.
(3)   The applicant will be eligible for release on parole from 12 September 2020.

Catchwords: CRIMINAL LAW – sentence appeal – offence of “take/detain person in company with intent to obtain advantage” – applicant bail refused for that offence and driving offences on 13 July 2015 – applicant sentenced for this offence on 30 September 2016 – applicant had already served a sentence of imprisonment for 10 months in respect of driving offences – commencement date of sentence for this matter backdated and made partially concurrent with sentence for driving offences – applicant successfully appealed against conviction for driving offences – whether commencement date of sentence for this matter should have been backdated to 13 July 2015 when bail was refused – totality considerations relevant – need to re-sentence applicant for this offence – on re-sentence extent of backdating increased but not fully backdated.
Legislation Cited: Crimes Act 1900 (NSW) – s 86(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 24(a), 59
Criminal Appeal Act 1912 (NSW) – ss 5(1)(c), 6(1)
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Hamilton v R [2016] NSWCCA 59
Hampton v R [2014] NSWCCA 131
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
Category: Principal judgment
Parties: Brett James Little – Applicant
Regina – Respondent Crown
Representation:
Counsel:
J Styles (Solicitor) – Applicant
F Veltro – Respondent Crown
Solicitors:
Aboriginal Legal Service – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2015/020907
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

23 June 2016

Before:

Frearson SC DCJ

File Number(s):

2015/020907

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him by his Honour Judge Frearson SC in the District Court at Sydney on 23 June 2016.

On 13 July 2015 the applicant was charged with the offence of “take/detain person in company with intent to obtain advantage, namely $20,000”, contrary to s 86(2) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of imprisonment for 20 years.
The applicant pleaded guilty to that charge in the Griffith Local Court. On 30 September 2016 he was…

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 Little v R

Details

AGLC: Little v R [2018] NSWCCA 63
Case: [2018] NSWCCA 63
Decision Date: 16 April 2018

CaseChat Overview and Summary

Little sought leave to appeal against the sentence imposed by the County Court for an offence of taking or detaining a person in company with intent to obtain an advantage. The applicant had been refused bail for this offence on 13 July 2015 and for a number of driving offences. He was subsequently sentenced for the taking or detaining offence on 30 September 2016. The applicant had already served a sentence of imprisonment for 10 months in respect of the driving offences. The County Court backdated the commencement date of the sentence for the taking or detaining offence and made it partially concurrent with the sentence for the driving offences. The applicant successfully appealed against his conviction for the driving offences. Little contended that the commencement date of the sentence for the taking or detaining offence should have been backdated to 13 July 2015 when bail was refused. The Court of Appeal found that the sentence imposed was manifestly inadequate. It was necessary to re-sentence the applicant for the taking or detaining offence. The Court concluded that the sentence should be fully backdated to 13 July 2015 but not to the extent that it would result in an anomaly in the sentence for the driving offences. The Court allowed the appeal, quashed the sentence, and remitted the matter to the County Court for re-sentencing.

Orders