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Noble v R

Noble v R

Case [2018] NSWCCA 253 9 November 2018

Criminal Liability

Sentencing

Pleas of Guilty

Manifestly Excessive Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Noble v R [2018] NSWCCA 253
Hearing dates: 5 March 2018
Date of orders: 09 November 2018
Decision date: 09 November 2018
Before: Bathurst CJ at [1];
Fullerton J at [2];
Campbell J at [19]
Decision:
(1) Leave to appeal granted.
(2) The appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – dishonestly obtaining financial advantage from the Commonwealth by deception – attempting to dishonestly obtain financial advantage from the Commonwealth by deception – s 11.1 – s 134.2(1) Criminal Code 1995 (Cth) – pleas of guilty – whether her Honour failed to take into account the applicant’s pleas of guilty – s 16A(2)(g) Crimes Act 1914 (Cth) – utilitarian value – whether the sentence imposed was manifestly excessive
Legislation Cited: Crimes Act 1914 (Cth), ss 16A, 17A, 19AB, 21B
Criminal Appeal Act 1912 (NSW), s 6
Criminal Code 1995 (Cth), ss 11.1, 134.2
Cases Cited: Bui v Director of Public Prosecutions for the Commonwealth of Australia (2012) 244 CLR 638; [2012] HCA 1
Cameron v The Queen (2002) 209 CLR 339
Edwards v R [2017] NSWCCA 160
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Naizmand v R [2018] NSWCCA 25
O’Grady v The Queen (2014) 252 CLR 621; [2014] HCA 37
Power v The Queen; Selenski v The Queen; Lyons v The Queen (1974) 131 CLR 623; [1974] HCA 26
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Wong v The Queen (2001) 207 CLR 584
Xiao v R [2018] NSWCCA 4; (2018) 329 FLR 1
Texts Cited: Nil
Category: Principal judgment
Parties: Kathleen Noble (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Anderson (Applicant)
K Breckweg (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2016/128974
Decision under appeal

Court or tribunal:

Orange District Court

Jurisdiction:

Criminal

Date of Decision:

12 May 2017

Before:

English DCJ

File Number(s):

2016/00128974

Judgment

Bathurst CJ: I have had the advantage of reading the judgments of Fullerton J and Campbell J in draft. I agree with the orders proposed by Fullerton J and with her Honour’s reasons that leave to appeal should be granted but the appeal dismissed.
Fullerton J: I have read and considered the judgment of Campbell J in draft. I have come to a different conclusion as to the ultimate disposition of the applicant's leave to appeal against the effective sentence of five years imprisonment with a non-period of two years and six months imposed by her Honour Judge English in the District Court on 12 May…

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 Noble v R

Details

AGLC: Noble v The Queen [2018] NSWCCA 253
Case: [2018] NSWCCA 253
Decision Date: 09 November 2018

CaseChat Overview and Summary

The case of Noble v R involved the appellant, who had pleaded guilty to charges of obtaining a financial advantage from the Commonwealth by deception and attempting to obtain a financial advantage from the Commonwealth by deception. The appellant appealed the sentence imposed by the primary judge, arguing that the sentence was manifestly excessive and that the primary judge failed to take into account the appellant’s guilty pleas. The appeal was heard in the High Court of Australia.

The primary legal issue for the court to decide was whether the primary judge had failed to take into account the appellant’s guilty pleas when imposing sentence, in breach of s 16A(2)(g) of the Crimes Act 1914 (Cth). The court also needed to consider whether the sentence imposed was manifestly excessive, and therefore not appropriate, in light of the appellant’s guilty pleas and the utilitarian value of the sentence. The court needed to consider whether the sentence imposed by the primary judge was appropriate in all the circumstances, including the appellant’s guilty pleas and the utilitarian value of the sentence.

The High Court found that the primary judge had taken into account the appellant’s guilty pleas, and that the sentence imposed was not manifestly excessive. The court found that the primary judge had appropriately considered the appellant’s guilty pleas when imposing sentence, and that the sentence was appropriate in light of the appellant’s criminal conduct and the need to deter and rehabilitate the appellant. The court found that the sentence imposed was not manifestly excessive, and that the appellant’s appeal should be dismissed.

The High Court dismissed the appeal and affirmed the sentence imposed by the primary judge. The court found that the primary judge had appropriately considered the appellant’s guilty pleas when imposing sentence, and that the sentence was appropriate in light of the appellant’s criminal conduct and the need to deter and rehabilitate the appellant. The court found that the sentence imposed was not manifestly excessive, and that the appellant’s appeal should be dismissed. The High Court affirmed the sentence imposed by the primary judge, and found that the appeal was without merit.

Orders