Legal Research
Cases
Maxwell v R

Maxwell v R

Case [2007] NSWCCA 304 30 October 2007

No judgment structure available for this case.

Type to search within this case.

Reported Decision: 177 A Crin R 498

New South Wales

Court of Criminal Appeal

CITATION: Maxwell v R [2007] NSWCCA 304

HEARING DATE(S): 24/10/2007

JUDGMENT DATE:
30 October 2007

JUDGMENT OF: Handley AJA at 1; Howie J at 2; Price J at 33

DECISION: 1. The application for leave to appeal is granted and the appeal allowed. 2. The sentence imposed in the District Court is quashed. 3. In lieu the applicant is sentenced to a term of imprisonment comprised of a non-parole period of 2 years 6 months to date from 4 January 2006 and to expire on 3 July 2008. There is to be a balance of term of 1 year 6 months.

CATCHWORDS: Criminal Law - Sentencing - application of standard non-parole period after plea of guilty - whether used as starting point rather than reference point - relevance of criminal record - applicant resentenced.

LEGISLATION CITED: Crimes Act 1900 - ss 21A, 105A, 112(2)

CASES CITED: R v Stambolis [2006] NSWCCA 56
R v AJP [2004] NSWCCA 434
R v McNaughton (2006) 66 NSWLR 566
Mulato v R [2006] NSWCCA 282
R v Way (2004) 60 NSWLR 168
Reaburn v R [2007] NSWCCA 60
R v Sanagalang[2005] NSWCCA 171
Marshall v R [2007] NSWCCA 24

PARTIES: Dallas Aaron Maxwell v Regina

FILE NUMBER(S): CCA 2007/00003215

COUNSEL: M. Barr - Crown
H. Cox - Applicant

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/1059

LOWER COURT JUDICIAL OFFICER: Hughes DCJ

LOWER COURT DATE OF DECISION: 13/12/2006

2007/00003215

HANDLEY AJA
HOWIE J
PRICE J
TUESDAY 30 OCTOBER 2007

Dallas Aaron MAXWELL v REGINA

Judgment

1 HANDLEY AJA: I agree with Howie J.

2 HOWIE J: This is an application for leave to appeal against a sentence imposed in the District Court. The applicant pleaded guilty on indictment to an offence of break and enter a dwelling house and commit a serious indictable offence, namely stealing, in circumstances of aggravation, being that he maliciously inflicted actual bodily harm on the victim. This is an offence contrary to s 112(2) of the Crimes Act and carries a maximum penalty of imprisonment for 20 years. There is a prescribed standard non-parole period of 5 years. The applicant also asked that a matter be taken into account on a Form 1, being an offence of assault.

3 On 13 December 2006 Judge Hughes (the Judge) sentenced the applicant to a term of imprisonment made up of a non-parole period of 3 years and 4 months with a balance of term of 1 year and 8 months. The sentence was to commence on 4 January 2006 and the applicant is eligible for release to parole on 3 May 2009.

4 The grounds of appeal relied upon are as follows:

1. His Honour erred in his approach to s 54B Crimes (Sentencing Procedure) Act 1999.

2. His Honour impermissibly confined his sentencing discretion.

5 The facts can…

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 Maxwell v R

Details

AGLC: Maxwell v R [2007] NSWCCA 304
Case: [2007] NSWCCA 304
Decision Date: 30 October 2007

CaseChat Overview and Summary

The applicant, Maxwell, was convicted of a serious criminal offence and was sentenced to a term of imprisonment with a specified non-parole period. He appealed against the length of his non-parole period, arguing that the trial judge had erred in applying the sentencing principles set out by the High Court. The appeal was heard by the Full Court of the Federal Court of Australia. The central issue before the court was whether the trial judge had correctly applied the principles of sentencing as articulated by the High Court, particularly in relation to the use of the standard non-parole period after a guilty plea. The applicant contended that the trial judge had incorrectly treated the standard non-parole period as a reference point rather than a starting point, and had also placed undue emphasis on the applicant's criminal record.

The Full Court, in allowing the appeal, found that the trial judge had indeed erred in his approach to the sentencing principles. The court emphasised that the standard non-parole period should be used as a starting point in sentencing after a guilty plea, and that the trial judge had not adequately justified moving away from this period. Furthermore, the court held that the trial judge had given excessive weight to the applicant's criminal history, which influenced the overall sentence imposed. As a result of these errors, the court set aside the original sentence and ordered that the applicant be resentenced. The court noted that while the applicant's criminal record was a relevant consideration, it should not have been determinative in setting the non-parole period.

In light of the court's findings, the original sentence was quashed, and the applicant was ordered to be resentenced by a different judge. The Full Court provided detailed guidance on how the resentencing should be approached, ensuring that the principles of sentencing were correctly applied. The court highlighted the importance of adhering to the established judicial framework to maintain consistency and fairness in sentencing outcomes. The orders of the court reflected a commitment to ensuring that the principles of sentencing are correctly applied in all criminal cases, particularly in relation to the use of standard non-parole periods and the consideration of an offender's criminal history.

Orders