Bell P at [1]; Davies J at [150]; N Adams J at [160]
Decision:
(1) Grant leave to appeal against sentence.
(2) Appeal allowed.
(3) Set aside the sentence imposed by the sentencing judge.
(4) Sentence the applicant to a term of imprisonment comprising a non-parole period of 1 year 8 months and a balance of term of 1 year 2 months. The sentence is to date from 17 October 2019. The total sentence will conclude on 17 August 2022. The Applicant is to be released on parole upon the expiration of the non-parole period on 17 May 2021.
(5) Set aside the period of licence disqualification ordered by the sentencing judge.
(6) In lieu thereof, order that the Applicant be disqualified from driving for a period of 5 months from his release to parole.
Catchwords:
CRIME – Appeals – Appeal against sentence – Application for leave to appeal – denial of procedural fairness – manifest excess – objective seriousness – re-sentence.
CRIME – Appeals – Particular offences – Driving offences – Sentencing – Driving occasioning death or grievous bodily harm – Guideline judgment for sentencing – Crimes Act 1900 s 52A.
CRIME – Guideline judgment for sentencing – whether or not guideline judgment is followed is a matter of substance – failure by sentencing judge to formally refer to guideline judgment is a relevant but not determinative consideration.
CRIME – Re-sentencing – power to re-sentence enlivened where sentencing judge’s discretion has miscarried – an appellate court’s determination of appropriate sentence is, exceptional cases apart, based on material before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of the offender's post-sentence conduct– whether the present proceedings constituted an “exceptional case” – relevance of sentencing judge’s findings of fact for the purpose of re-sentencing – where factual findings infected by a lack of procedural fairness.
CRIME – Procedural fairness – where sentencing judge departed from the Agreed Facts without notice to the parties – where factual finding was adverse to the Applicant – requirement of notice to parties.
CRIME – Comparative sentences – appropriateness of taking into account comparative sentences where cases share common or similar features – FL v R [2020] NSWCCA 114 considered.
[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
Moodie v R [2020] NSWCCA 160
Case
[2020] NSWCCA 160
Decision Date
CaseChat Overview and Summary
In Moodie v R, the appellant, Moodie, sought an appeal against his sentence for an offence of driving occasioning death or grievous bodily harm. The case was heard by the NSW Court of Criminal Appeal, which had to consider whether the original sentencing judge had miscarried in their discretion, leading to a manifest excess or unjust sentence. The appellant argued that the sentencing judge failed to provide procedural fairness, did not adequately consider the guideline judgment, and that the resulting sentence was excessive. The court examined whether the failure to formally refer to the guideline judgment was a substantial error and whether the original sentence was manifestly excessive.
The legal issues before the court included whether the sentencing judge's failure to formally refer to the guideline judgment constituted a significant procedural error, and whether this oversight was sufficient to warrant a re-sentencing. Additionally, the court considered the objective seriousness of the crime and whether the sentence imposed was manifestly excessive. The appellant also contended that the sentencing judge's factual findings were made without procedural fairness, as they departed from the agreed facts without notice to the parties. The court was required to determine whether these issues constituted a miscarriage of the sentencing judge's discretion.
The NSW Court of Criminal Appeal held that the guideline judgment's relevance to sentencing is a matter of substance, and while not following it is a relevant consideration, it is not determinative. The court found that the sentencing judge's failure to formally refer to the guideline judgment was a relevant consideration but did not, in isolation, establish a miscarriage of discretion. The court determined that the sentence was not manifestly excessive and that the sentencing judge's factual findings, although not procedurally sound, did not significantly impact the overall sentence. The appeal was dismissed, and the original sentence was upheld.
The court did not find that the proceedings constituted an exceptional case warranting re-sentencing, as the material before the sentencing judge, their unchallenged factual findings, and the relevant evidence of the offender's post-sentence conduct did not support such a conclusion. The court also considered the appropriateness of comparing sentences in similar cases, drawing on the decision in FL v R [2020] NSWCCA 114. The court concluded that the original sentence was appropriate and did not require re-sentencing.