Basten JA at [1]; Hamill J at [70]; Lonergan J at [78]
Decision:
(1) Grant the applicant an extension of time until 21 December 2018 to file his application for leave to appeal the sentence imposed by the District Court on 23 November 2015.
(2) Grant the applicant leave to appeal.
(3) Allow the appeal and set aside the sentence imposed in the District Court.
(4) Resentence the offender to an aggregate sentence of 6½ years with a non-parole period of 4 years commencing on 19 September 2015. The non-parole period will expire on 18 September 2019; the total sentence will expire on 18 March 2022.
(5) The earliest day on which the applicant is eligible for release on parole is 18 September 2019.
Catchwords:
CRIMINAL LAW – appeal against sentence – offender convicted of multiple drug supply offences –sentencing judge inferred from prior conviction that offender had previously used growth hormone – error conceded – whether error sufficient to warrant resentencing – agreement between parties – effect of Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 considered
CRIMINAL LAW – appeal against sentence – resentencing – nature of remorse – offender did not testify – limited reliance on self-serving statements to psychologist – need for transparency in accumulation of sentences – appropriateness of aggregate sentence – special circumstances
John Newman (a pseudonym) (Applicant) Regina (Respondent)
Representation:
Counsel: Ms M Cinque SC (Applicant) Mr D Barrow (Respondent)
Solicitors: The Law Practice (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2012/201934
Publication restriction:
1. The Court makes an order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that: (a) the applicant be identified in connection with these proceedings by a pseudonym;(b) publication of any information tending to reveal the identity of the applicant or the identity of the applicant’s father be prohibited. 2. This order shall apply for a period of 20 years from the date of this order. 3. The reasons for making these orders are that they are necessary to protect the safety of the applicant and the applicant’s father. 4. The applicant is to be…
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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AGLC
Newman (a pseudonym) v R [2019] NSWCCA 157
Case
[2019] NSWCCA 157
Decision Date
CaseChat Overview and Summary
In the matter of Newman, the appellant, against the respondent, the Crown, the High Court of Australia was called upon to determine the validity of the sentence imposed by a lower court on the appellant, who had been convicted of multiple drug supply offences. The appellant sought to appeal his sentence on the basis that the sentencing judge had erred in inferring from a prior conviction that the appellant had previously used growth hormone. Both parties conceded that this was an error; however, the question remained as to whether this error was sufficient to warrant a resentencing. Furthermore, the court considered the nature of the appellant's remorse and the appropriateness of the aggregate sentence imposed.
The court was required to decide whether the error in inferring the prior use of growth hormone was sufficient to warrant a resentencing. The court also had to consider the effect of Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 on the matter, which established that an appellate court should not substitute its own view for that of the sentencing judge unless there has been a significant error of principle or a clear and substantial miscarriage of justice. Additionally, the court considered the need for transparency in the accumulation of sentences and the appropriateness of the aggregate sentence imposed, taking into account the appellant's remorse and special circumstances.
The court found that the error in inferring the prior use of growth hormone was indeed a significant error of principle, as it affected the overall assessment of the appellant's culpability and potential for rehabilitation. The court held that the error warranted a resentencing in accordance with the principles established in Kentwell v The Queen. The court also considered the limited reliance on self-serving statements to a psychologist in assessing the appellant's remorse, and found that it did not provide a sufficient basis for the original sentence. The court further examined the need for transparency in the accumulation of sentences and the appropriateness of the aggregate sentence imposed, taking into account the appellant's special circumstances. Ultimately, the court found that the original sentence was inappropriate and ordered a resentencing.
The court ordered that the appellant be resentenced by a different judge, taking into account the error in inferring the prior use of growth hormone, the limited evidence of the appellant's remorse, and the need for transparency in the accumulation of sentences. The court emphasised the importance of considering the appellant's special circumstances in the resentencing process. The court did not specify the exact terms of the new sentence, leaving that decision to the resentencing judge.