Newton v The Queen - [2014] NSWCCA 41

This decision has been amended. Please see the end of the decision for a list of the amendments.

Court of Criminal Appeal

New South Wales

Case Title: Newton v R

Medium Neutral Citation: [2014] NSWCCA 41

Hearing Date(s): 24 March 2014

Decision Date: 02 April 2014

Before: Macfarlan JA at [1]
Adamson J at [2]
Bellew J at [57]

Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentences - totality principle - accumulation of sentences - whether sentence was manifestly excessive - break and enter - drive whilst disqualified - lengthy criminal record

Legislation Cited: Crimes Act 1900 (NSW), s 112
Crimes (Sentencing Procedure) Act 1999, s 21A, s 44.

Cases Cited: Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Hayes [1984] 1 NSWLR 740
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159

Category: Principal judgment

Parties: Brett Ian Newton (Appellant)
Regina (Respondent)

Representation

- Counsel: Counsel:
C Smith (Applicant)
Ms H Wilson SC (Respondent)

- Solicitors: Solicitors:
SE O'Connor - Legal Aid NSW (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/336647

Decision Under Appeal

- Before: Arnott DCJ

- Date of Decision: 16 May 2013

- Court File Number(s): 2012/336647

Publication Restriction: Nil

Judgment

MACFARLAN JA: I agree with Adamson J.
ADAMSON J: The applicant seeks leave to appeal against a sentence passed by Judge Arnott in the District Court on 16 May 2013 of 3 years' imprisonment with a non-parole period of 18 months following his plea of guilty to break and enter a dwelling house and commit a serious indictable offence (stealing) in contravention of s 112(1) of the Crimes Act 1900 (NSW). A 25% discount was allowed for the plea of guilty. The offence carried a maximum penalty of 14 years imprisonment.

Facts

The agreed facts were summarised on the remarks on sentence.
On 7 am on Thursday 25 October 2012, the applicant went to a home in Narellan which was occupied by an acquaintance. He opened a glass sliding door to a granny flat at the rear of the home. He stole an iPod, mobile phone and $50 cash. He also stole an unregistered trail bike which he rode from the premises. Later that morning, the victim discovered that the property was missing from the granny flat and confronted the applicant. The applicant denied stealing the property. The victim made enquiries with his mobile phone carrier and ascertained that the applicant had used the victim's phone to call his mother. When the victim phoned the applicant, the applicant told him where the stolen property was. The stolen property, apart from the mobile phone, was recovered.
Fingerprints, subsequently found to be the applicant's, were located at the victim's residence. The applicant was arrested four days later and interviewed. He denied the offence. He sought to explain the presence of his fingerprints by saying…

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 Newton v The Queen

Details

AGLC: Newton v The Queen [2014] NSWCCA 41
Case: [2014] NSWCCA 41
Decision Date: 2 April 2014

CaseChat Overview and Summary

The applicant, Brett Ian Newton, sought leave to appeal against his sentence of 3 years' imprisonment with a non-parole period of 18 months, imposed by Judge Arnott in the District Court, following his guilty plea to a break and enter a dwelling house and commit a serious indictable offence (stealing) in contravention of s 112(1) of the Crimes Act 1900 (NSW). The applicant argued that the sentencing judge erred in failing to have proper regard to the totality principle in his accumulation of sentences and that the sentence was manifestly excessive. The Court considered the principles of totality and the importance of considering the total criminality involved in the offences for which the offender is being sentenced, as well as any offences for which the offender has already been sentenced. The Court concluded that the sentencing judge's remarks on sentence were sufficient to demonstrate that the criticisms made of them were not soundly based. The Court further considered the maximum penalty of 14 years for the offence of break enter and steal, as well as the seriousness of the offence and the applicant's lengthy criminal record. The Court found that the sentence was not excessive and dismissed the appeal. The Court granted leave to appeal, but dismissed the appeal on the basis that the sentence imposed was not manifestly excessive. The Court found that the sentencing judge appropriately considered the total criminality involved and the seriousness of the offence in determining the sentence. The Court also noted that the sentencing judge adjusted the ratio of the non-parole period to the total sentence, thereby reducing the time in custody and increasing the time subject to supervision in the community on parole.

Orders