Norford v The Queen - [2020] NSWCCA 104

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Norford v R [2020] NSWCCA 104
Hearing dates: 7 May 2020
Date of orders: 27 May 2020
Decision date: 27 May 2020
Before: Simpson AJA at [1]
Rothman J at [2]
Bellew J at [3]
Decision:
(1) Leave to appeal against sentence granted.

(2) Appeal allowed.

(3) The sentence imposed in the District Court in respect of the offence contrary to s 112(2) of the Crimes Act 1900 (NSW) is quashed.
(4) In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 9 months’ imprisonment to date from 30 November 2018 and to expire on 29 August 2020, with an additional term of 1 year and 9 months’ imprisonment commencing on 30 August 2020 and expiring on 29 May 2022.
Catchwords: CRIMINAL LAW – Appeal – Sentence – Whether sentence manifestly excessive – Where applicant pleaded guilty to break and enter and commit a serious indictable offence in circumstances of aggravation – Where serious indictable offence was larceny – Favourable findings made by the sentencing judge regarding the circumstances of the offending – Findings inconsistent with conclusions as to objective seriousness – Error established – Where the findings of the sentencing judge were not challenged – Special circumstances justifying adjustment of statutory ratio – Prospects of rehabilitation against a background of lengthy criminal history – Applicant re-sentenced
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: Cohen v R [2011] NSWCCA 165
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Category: Principal judgment
Parties: Timothy John Norford – Applicant
Regina – Respondent
Representation:
Counsel:
P Coady – Applicant
C Young – Respondent
Solicitors:
Legal Aid NSW – Applicant
C Hyland, Solicitor for Public Prosecutions (NSW) – Respondent

File Number(s): 2018/333824
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

22 July 2019

Before:

Acting Judge Conlon SC

Judgment

SIMPSON AJA: I agree with Bellew J.
ROTHMAN J: I agree with Bellew J.
BELLEW J:

INTRODUCTION

On 22 July 2019 Timothy John Norford (the applicant) pleaded guilty to the following offences before Acting Judge Conlon SC in the District Court of NSW:

Between 30 October 2018 and 31 October 2018, at Potts Point in the State of New South Wales, did enter the dwelling house of Stephanie Bourke situate at (xxx) with intent to commit a serious indictable offence therein, to wit, larceny in circumstances of aggravation, to wit, he knew that there was a person present within the said dwelling place.

Between 30 October 2018 and 31 October 2018, at Potts Point in the State of New South Wales, did break and enter the dwelling house of Rachel Crerar situate at (xxx) and then in the said dwelling house did commit a serious indictable offence, to wit, larceny in circumstances of aggravation, to wit, he knew that there were persons present within the said dwelling.

The offending…

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 Norford v The Queen

Details

AGLC: Norford v The Queen [2020] NSWCCA 104
Case: [2020] NSWCCA 104
Decision Date: 27 May 2020

CaseChat Overview and Summary

The case of Norford v The Queen involved an appeal against the sentence imposed by the sentencing judge. The applicant, Norford, had pleaded guilty to breaking and entering and committing a serious indictable offence, namely larceny, in circumstances that involved aggravation. The appeal focused on whether the sentence was manifestly excessive. The court was required to decide whether the sentence imposed was appropriate given the nature of the offence and the circumstances under which it was committed.

The legal issues centred on the balancing act between the sentencing judge’s findings and the objective seriousness of the offence. The sentencing judge had made favourable findings regarding the circumstances of the offending but these findings seemed inconsistent with the conclusions drawn about the objective seriousness of the offence. The court had to determine if there was an error in the sentencing process and, if so, whether special circumstances existed that justified adjusting the statutory ratio. The applicant's prospects of rehabilitation, particularly against the backdrop of a lengthy criminal history, were also considered.

The court found that there was an error in the sentencing process due to the inconsistency between the favourable findings and the conclusions regarding the offence's seriousness. The findings were not challenged during the original sentencing, which further complicated the assessment. Given the special circumstances, including the applicant's prospects of rehabilitation, the court deemed it necessary to re-sentence Norford. The final orders involved the re-sentencing of Norford, taking into account the appropriate legal principles and mitigating factors.

Orders