Paese v The Queen - [2010] NSWCCA 178

New South Wales
Court of Criminal Appeal

CITATION: Paese v R [2010] NSWCCA 178

HEARING DATE(S): 9 August 2010

JUDGMENT DATE:
2 September 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Davies J at 3

DECISION: (1) Leave to appeal granted. (2) Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - appeal against severity - break, enter and steal - use of statistics - comparison between offence charged and aggravated form of the offence - sentence imposed said to fall within appropriate sentence for aggravated form of the offence - no error shown.

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986

CATEGORY: Principal judgment

CASES CITED: Graham v R [2009] NSWCCA 212
In The Matter of the Attorney General's Application (No 1) under s 26 of the Criminal Appeal Act; R V Ponfield [1999] NSWCCA 435
Markarian v R (2005) 228 CLR 35
R v Harris [2007] NSWCCA 130
R v Way (2004) 60 NSWLR 168

PARTIES: Patrick Paese (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/11700

COUNSEL: T Gartelmann (Applicant)
V Lydiard (Respondent)

SOLICITORS: Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11700

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 13 February 2009

- 10 -

2008/11700

MCCLELLAN CJ AT CL, JAMES & DAVIES JJ

2 SEPTEMBER 2010

PAESE V R

Judgment

1 McCLELLAN CJ at CL

: I agree with Davies J.

2 JAMES J: I agree with Davies J.

3 DAVIES J: On 28 November 2008 the Applicant pleaded guilty in the District Court for an offence of break and enter a dwelling house and commit a serious indictable offence, namely larceny contrary to s 112(1) of the Crimes Act 1900. The maximum penalty for this offence is fourteen years imprisonment.

4 On 13 February 2009 his Honour Judge Marien SC sentenced the Applicant to a non-parole period of 3 years and 10 months with an additional sentence of 1 year and 9 months. The sentence was to commence on 11 April 2008 and the non-parole period was to expire on 10 November 2012.

5 The appeal was filed out of time because of a misunderstanding by the solicitor for the Applicant that a 2-month extension period had been granted by this Court on 21 January 2010 when in fact only a one month period had been granted. No objection was taken by the Crown to the late filing of the Appeal. In the circumstances, leave will be granted to bring the appeal out of time.

6 Three persons were involved in the commission of the offence. One of the other offenders, Gary Victor Nawalu, was charged with the same offence as the Applicant. The third participant, Steven John Perri, was charged with being an accessory after the fact to the offence of break, enter and steal. Nawalu and Perri also pleaded guilty. His Honour dealt with all 3 together on 13 February 2009.

7 Although the only ground of appeal…

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 Paese v The Queen

Details

AGLC: Paese v The Queen [2010] NSWCCA 178
Case: [2010] NSWCCA 178
Decision Date: 2 September 2010

CaseChat Overview and Summary

The case of Paese v The Queen involved an appellant who was convicted of breaking and entering a dwelling house and stealing. The appellant appealed against the severity of the sentence imposed, arguing that it was excessive. The appeal was heard in the High Court of Australia.

The central legal issue was whether the sentence imposed by the trial judge was manifestly excessive, taking into account the nature and circumstances of the offence. The appellant's argument focused on the use of statistics to compare the offence charged with the aggravated form of the offence and the assertion that the sentence imposed fell within the appropriate range for the aggravated form. The Crown contended that the sentence was within the appropriate range for the offence as charged.

The High Court found that the sentence was not manifestly excessive. The trial judge had considered the appropriate range of sentences for the offence as charged and for the aggravated form of the offence. The sentence imposed fell within the appropriate range for the offence as charged. The comparison between the offence charged and the aggravated form did not establish that the sentence was manifestly excessive. The Court concluded that no error was shown in the trial judge's assessment of the sentence.

The appeal was dismissed, and the original sentence was upheld.

Orders