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Newman v R

Newman v R

Case [2021] NSWCCA 101 21 May 2021

Criminal Liability

Sentencing

Pervert the Course of Justice

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Newman v R [2021] NSWCCA 101
Hearing dates: 26 April 2021
Decision date: 21 May 2021
Before: Hoeben CJ at CL at [1];
N Adams J at [56];
Hidden AJ at [73]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal against sentence is dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – plea of guilty to offences of aggravated break enter and commit serious indictable offence, damage to property by fire and two counts of pervert the course of justice – whether applicant had experienced a disadvantaged background so as to attract the principles in Bugmy v The Queen – analysis by sentencing judge of report by psychologist – whether findings by sentencing judge concerning the psychologist’s report were open to him – no error on the part of the sentencing judge established – leave to appeal granted but appeal against sentence dismissed.

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
AB v R [2014] NSWCCA 339
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Clarke v R [2015] NSWCCA 232
Dungay v R [2020] NSWCCA 209
Gibson v Regina [2019] NSWCCA 221
Hordern v R [2019] NSWCCA 138
Ingrey v R [2016] NSWCCA 31
Kliendienst v R [2020] NSWCCA 98
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v O’Donoghue (1988) 34 A Crim R 397

Category: Principal judgment
Parties: Aden Newman – Applicant
Regina – Respondent
Representation:
Counsel:
R Khalilizadeh – Applicant
H Roberts – Respondent
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent

File Number(s): 2019/98924
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

28 April 2020

Before:

McLennan SC DCJ

File Number(s):

2019/98924

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave to appeal against a sentence imposed upon him by his Honour Judge McLennan SC (the sentencing judge) on 28 April 2020 at the Lismore District Court.

The applicant pleaded guilty to and was sentenced for the following offences:

aggravated break, enter and commit serious indictable offence (stealing) contrary to s 112(2) of the Crimes Act 1900 (NSW) (Crimes Act) (count 1);

damage property by fire, contrary to s 195(1)(b) of the Crimes Act (count 2); and

two counts of pervert the course of justice, contrary to s 319 of the Crimes Act (counts 3 and 4).

Two further offences of perverting the course of justice were taken into account on a Form 1, which attached to the damage property by fire offence (the Form 1 offences).
The applicant was sentenced to an aggregate sentence of imprisonment for 6 years and 9 months, with a non-parole period of 3 years and 9 months to date from…

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 Newman v R

Details

AGLC: Newman v R [2021] NSWCCA 101
Case: [2021] NSWCCA 101
Decision Date: 21 May 2021

CaseChat Overview and Summary

The appellant, Newman, appealed against the sentence imposed on him by the sentencing judge following a plea of guilty to charges of aggravated break enter and commit serious indictable offence, damage to property by fire, and two counts of pervert the course of justice. The appeal was heard by the Court of Appeal, which had to determine whether the sentencing judge had erred in his assessment of the appellant's background and its relevance to the sentencing principles outlined in Bugmy v The Queen. Additionally, the court was required to consider whether the sentencing judge's interpretation of the psychologist's report was correct and whether any errors made by the sentencing judge warranted the dismissal of the appeal.

The court reviewed the sentencing judge's analysis of the psychologist's report, which assessed the appellant's disadvantaged background. The court determined that the sentencing judge had correctly considered the psychologist's findings and had applied the appropriate legal principles in reaching his decision. The court found no error on the part of the sentencing judge in his interpretation of the report or in his application of the relevant sentencing principles. The court further found that the appellant's background, while disadvantaged, did not warrant a sentence that deviated significantly from the ordinary principles of sentencing.

As a result of the court's findings, the appeal against the sentence was dismissed. The court granted leave to appeal, but ultimately concluded that there was no merit in the appeal. The original sentence imposed by the sentencing judge was upheld, and the appeal was dismissed without any alteration to the sentence. The court's decision reinforced the importance of a thorough and accurate assessment of the defendant's background and the proper application of sentencing principles in criminal cases.

Orders