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Owens v The King

Owens v The King

Case [2023] NSWCCA 198 16 August 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Owens v R [2023] NSWCCA 198
Hearing dates: 28 April 2023
Date of orders: 16 August 2023
Decision date: 16 August 2023
Before: Wright J at [1]
Wilson J at [100]
Fagan J at [107]
Decision:
(1)   The time for filing of the application for leave to appeal is extended to 26 August 2021.
(2)   The applicant has leave to appeal in respect of ground 1.
(3)   The appeal is upheld.
(4)   The aggregate sentence imposed on the applicant on 3 August 2018 is quashed.
(5)   In lieu, the applicant is sentenced to a non-parole period of 16 years 3 months, commencing on 5 October 2016 and expiring on 4 January 2033, and a balance of term of 5 years 6 months expiring on 4 July 2038.
(6)   The applicant will be eligible for release on parole on 4 January 2033.
(7) The applicant is informed of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to “serious offences” including the offence of murder for which he has been sentenced. This means that the State can apply to the Supreme Court for an order that he continue to receive supervision or be held in detention at the end of his sentence if the court considers he would be a “high risk offender” who poses an unacceptable risk of committing a serious offence.

Catchwords:
CRIME – appeals – appeal against sentence – assistance to authorities – determination of discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether sentencing judge erred in determining that the applicant was not entitled to a discount for promised assistance in respect of unrelated offending – appeal upheld – applicant resentenced

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(m), 23, 53A(2)
Crimes Act 1900 (NSW), ss 22 18(1)(a), 112(2), 154F
Firearms Act 1996 (NSW), ss 51H(1), 65(3)
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 3.5(5)

Cases Cited:
A v R [2018] NSWCCA 289
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Greentree v R [2018] NSWCCA 227
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
R v Cartwright (1989) 17 NSWLR 243
R v XX [2017] NSWCCA 90 (2017) 266 A Crim R 132
RJT v R [2012] NSWCCA 280; 218 A Crim R 490
Spiteri-Ahern v R [2022] NSWCCA 56
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment
Parties: Derek Owens (Applicant)
Rex (Respondent)
Representation:
Counsel:
M Avenell SC (Applicant)
E Balodis (Respondent)
Solicitors:
McGirr & Associates Pty Ltd (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/297047
Publication restriction: On 28 April 2023, the Court made orders under s 7(a) and (b) of the Court…

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 Owens v The King

Details

AGLC: Owens v The King [2023] NSWCCA 198
Case: [2023] NSWCCA 198
Decision Date: 16 August 2023

CaseChat Overview and Summary

The case of Owens v The King involved an appeal against sentence where the applicant argued that the sentencing judge had erred in not granting a discount for promised assistance to authorities in relation to unrelated offending. The case was heard in the New South Wales Court of Criminal Appeal. The applicant, Owens, had been convicted of various criminal offences and was appealing the sentence imposed by the trial judge.

The legal issue before the court was whether the sentencing judge had erred in not granting a discount for promised assistance to authorities in relation to unrelated offending, pursuant to section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court considered the principles of sentencing and the appropriate circumstances for granting a discount for assistance, particularly when the assistance related to unrelated offending. The applicant argued that the trial judge had failed to properly consider the potential benefits of his promised assistance and had therefore not appropriately exercised its discretion in determining the discount.

The court held that the sentencing judge had indeed erred in not considering the applicant's promised assistance to authorities in relation to unrelated offending. The court found that the trial judge had not appropriately exercised its discretion in determining the discount for assistance, and that a discount should have been applied. The court further held that the appropriate discount in this case was 25%. The appeal was therefore upheld, and the applicant was resentenced with the appropriate discount applied. The final orders of the court were that the applicant's appeal against sentence was upheld, and he was resentenced with a 25% discount applied to his sentence.

Orders