1. An extension of time to bring this appeal is granted.
2. Leave to bring this appeal is granted.
3. The appeal is dismissed.
Catchwords:
CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to 38 offences – Whether misstatement in the remarks on sentencing meant that sentencing judge proceeded on an incorrect basis and had capacity to influence the sentence – Whether expressions of frustration by the sentencing judge in the sentencing remarks at the way the charges had been brought affected the sentencing judge’s discretion
CRIME – Appeals – Appeal against sentence – Where evidence of assaults in custody was not before the Court at the sentencing hearing – Whether assaults in custody constituted extra-curial punishment
CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred by failing to take into account events that had not occurred at the time of sentencing
CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in failing to find that delays in the police investigation amounted to a mitigating factor in sentencing
CRIME – Appeals – Appeal against sentence – Where there was material before the Court at the sentencing hearing – Where the sentencing judge had made factual findings adverse to the applicant – Whether the sentencing judge had failed to take into account relevant material – Whether the findings made by the sentencing judge were reasonably open
CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to 38 offences – Whether the indicative sentences for six counts were manifestly excessive – Whether manifestly excessive sentences on some of the 38 counts was sufficient to establish that the overall effective sentence was manifestly excessive
CRIME – Appeals – Appeal against sentence – Where charges were initially brought under the wrong section of legislation – Where that was not brought to the applicant’s knowledge by his lawyers – Where those charges were later withdrawn – Where the applicant’s lawyers had advised him against tendering certain evidence – Whether there had been a miscarriage on the basis of incompetence of counsel
[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.
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AGLC
Ocek v R [2023] NSWCCA 308
Case
[2023] NSWCCA 308
Decision Date
CaseChat Overview and Summary
In the case of Ocek v R, the applicant appealed against his sentence after pleading guilty to 38 offences. The primary issues before the court were whether the sentencing judge had proceeded on an incorrect basis, whether expressions of frustration by the judge had affected his discretion, and whether there were other errors in the sentencing process. The court had to consider whether the evidence of assaults in custody constituted extra-curial punishment, if delays in the police investigation were a mitigating factor, and if the sentencing judge had erred by not taking into account certain events and material.
The court examined whether the sentencing judge's remarks contained misstatements that led to an incorrect basis for the sentence, and if the judge's expressions of frustration about the way charges were brought could have influenced the sentence. It also addressed whether the assaults in custody constituted extra-curial punishment, and if the judge should have considered delays in the police investigation as a mitigating factor. Additionally, the court scrutinised whether the sentencing judge had failed to take into account relevant material, and if his findings were reasonably open. The court also assessed whether the indicative sentences for six counts were manifestly excessive and if this, combined with other factors, made the overall effective sentence manifestly excessive.
The court concluded that the sentencing judge had not proceeded on an incorrect basis and that his expressions of frustration did not influence his discretion. It held that the assaults in custody did not constitute extra-curial punishment and that the delays in the police investigation were not a mitigating factor. The court found that the sentencing judge had taken into account relevant material and that his findings were reasonably open. Regarding the indicative sentences, the court determined that they were not manifestly excessive and that this did not make the overall effective sentence manifestly excessive. The court ultimately dismissed the appeal, maintaining the original sentence imposed by the sentencing judge.