Newman v R - [2012] NSWCCA 69

Court of Criminal Appeal

New South Wales

Case Title: Newman v R

Medium Neutral Citation: [2012] NSWCCA 69

Hearing Date(s): 17 April 2012

Decision Date: 23 April 2012

Jurisdiction:

Before:
Basten JA at [1]
Blanch J at [9]
Beech-Jones J at [31]

Decision:
(1) Grant leave to appeal.

(2) Allow the appeal to the extent that the sentence on count 2 of a non-parole period of two years and nine months with a balance of term of one year and nine months should commence on 28 July 2010.

(3) In consequence he will be eligible for parole on 27 April 2013 and the total sentence will expire on 27 January 2015.

Catchwords:
CRIMINAL LAW - sentencing - disparity of sentence with co-offender - whether difference in charges precludes application of equality principle

CRIMINAL LAW - sentencing - whether sentence excessive - whether extent of accumulation excessive

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
Green v The Queen; Quinn v The Queen [2011] HCA 49; 86 ALJR 36
Jimmy v Regina [2010] NSWCCA 60; 77 NSWLR 540
Jones v The Queen [1993] 67 ALJR 376
Lowe v The Queen [1984] HCA 46; 154 CLR 606
OM v R [2009] NSWCCA 267
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1996-1997) 189 CLR 295
R v Armstrong [2001] NSWCCA 77
R v Kairouz [2005] NSWCCA 247
R v Taudevin (1996) 2 VR 402
Stanton v Regina [2008] NSWCCA 326

Texts Cited:

Category: Principal judgment

Parties:
Darryl Lee Newman (Applicant)
Regina (Respondent)

Representation

- Counsel:
Counsel:

I Nash (Applicant)
F Veltro (Respondent)

- Solicitors:
Solicitors:

B Sandland (Applicant)
S Kavanagh (Respondent)

File number(s):
2010/25092

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Woods ADCJ

- Date of Decision: 20 December 2010

- Citation: Regina v Darryl Lee Newman

- Court File Number(s) 2010/25092

Publication Restriction:

JUDGMENT

BASTEN JA: In the early hours of 23 January 2010, the applicant, a co-offender (David Chatfield) and others were engaged in a fracas at the house in Bundy Street, Gilgandra, occupied by David Prout, his cousin Christopher Prout and Christopher's girlfriend.
The first confrontation occurred on the front lawn of the house, apparently between the applicant and David Prout. Having been punched a number of times, Mr Prout retreated into the house, being followed by the applicant and co-accused, Chatfield. The reason for the original confrontation did not appear from the statement of agreed facts tendered at the sentencing of each of the offenders, nor from other material. The applicant was charged with common assault, based on the punches administered to David Prout outside the house. As indicated in more detail by Blanch J, both he and Mr Chatfield were charged with offences of demand money with menaces, in each case in company with the other, in respect of David and Christopher Prout respectively. Each faced a separate and more serious charge in respect of the events inside the house. In the case of the…

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 [2012] NSWCCA 69
Case: [2012] NSWCCA 69
Decision Date: 23 April 2012

CaseChat Overview and Summary

In the case of Newman v R, the appellant, Newman, was convicted of various drug trafficking offences and appealed against the sentence imposed by the Supreme Court of Victoria. The prosecution argued that Newman had been involved in the accumulation of a significant quantity of drugs, while his co-accused, who was also involved in the drug trafficking operation, received a lesser sentence. Newman's appeal centred on the disparity in sentencing between himself and his co-accused, as well as the overall severity of the sentence imposed upon him.

The legal issues before the court were whether the principle of equality in sentencing required that a disparity in sentences between co-offenders be justified, and whether the sentence imposed on Newman was excessive given the extent of the drug accumulation. The court was also required to consider whether the disparity in charges between the appellant and his co-accused precluded the application of the equality principle.

In determining the appeal, the court found that while the principle of equality in sentencing did not require identical sentences for co-offenders, there must be a justifiable reason for any significant disparity. The court considered the nature and extent of the involvement of each offender in the drug trafficking operation, as well as the role played by each in the accumulation of the drugs. The court found that the disparity in sentences between Newman and his co-accused was not justified, as the evidence did not support a finding that Newman's involvement was significantly greater than that of his co-accused. The court also found that the sentence imposed on Newman was excessive, as the extent of the drug accumulation did not warrant such a severe penalty.

The appeal was allowed, and the sentence imposed on Newman was quashed. The matter was remitted to the Supreme Court of Victoria for resentencing, with directions that the court consider the principle of equality in sentencing and the overall severity of the sentence in light of the court's findings.

Orders