(1) The Court grants leave to appeal against sentence imposed in the District Court. (2) It allows the appeal. (3) It quashes the sentence imposed on 30 January 2017. (4) It re-sentences the applicant by imposing a term of imprisonment with a non-parole period of 10 months commencing on 4 October 2016 and concluding on 3 August 17, and a balance of term of eight months concluding on 3 April 2018. (5) Directs that the applicant be released forthwith.
Catchwords:
CRIME – leave to appeal against sentence – where appellant convicted of offence against public justice – pursuant to s 314 of the Crimes Act 1900 (NSW) – whether sentencing judge erred in consideration of the applicant’s mental state – whether sentence manifestly excessive – appeal allowed – discretion to re-sentence exercised – lower sentence imposed
Elisabeth Irene Luque (Applicant) Regina (Respondent)
Representation:
Counsel: P Coady (Applicant) M England (Respondent) Solicitors:
File Number(s):
2015/00337290
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
30 January 2017
Before:
Delaney AJ
File Number(s):
2015/00337290
Judgment
MACFARLANJA: My reasons for joining in the Court’s orders accord with those given by Button J.
BUTTON J:
Introduction
On 16 August 2017, I joined in orders of this Court that had the effect of immediately releasing Elisabeth Irene Luque (the applicant) to parole. The following are my reasons for doing so.
The applicant had sought leave to appeal against the sentence imposed upon her by Acting Judge Delaney sitting in the District Court at Penrith on 30 January 2017. A single count of making an accusation intending another person to be the subject of investigation for an offence, knowing that other person to be innocent, had been placed before his Honour by way of a committal for sentence. That is an offence contrary to s 314 of the Crimes Act 1900 (NSW). It carries a maximum penalty of imprisonment for seven years when dealt with on indictment, and has no standard non-parole period.
At first…
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.
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Details
AGLC
Luque v The Queen [2017] NSWCCA 226
Case
[2017] NSWCCA 226
Decision Date
CaseChat Overview and Summary
The appellant was convicted of an offence against public justice under section 314 of the Crimes Act 1900 (NSW). He appealed against his sentence, arguing that the sentencing judge had erred in not considering his mental state at the time of the offence, and that the sentence was manifestly excessive. The respondent, the Crown, argued that the sentence was appropriate and that the appellant's mental state was not relevant. The court was required to determine whether the sentencing judge erred in failing to consider the appellant's mental state, and whether the sentence was manifestly excessive. The court found that the sentencing judge had indeed erred in not considering the appellant's mental state, and that the sentence was manifestly excessive. The court exercised its discretion to re-sentence the appellant, imposing a lower sentence. The appeal was allowed and the sentence was reduced.