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Passaris v The Queen

Passaris v The Queen

Case [2011] NSWCCA 216 26 September 2011

Appeal

Sentencing

Legitimate Expectation

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Passaris v R [2011] NSWCCA 216
Hearing dates: 6 July 2011
Decision date: 26 September 2011
Jurisdiction: Common Law - Criminal
Before: Bathurst CJ at 1
Hall J at 21
Harrison J at 64
Decision:
1.Grant leave to appeal.
2.Dismiss the appeal.

Catchwords: CRIMINAL LAW - appeal against sentence - where sentencing judge erroneously failed to have regard to the provisions of the Criminal Case Conferencing Trial Act 2008 - no miscarriage of the exercise of the sentencing discretion - leave to appeal granted - appeal dismissed
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Case Conferencing Trial Act 2008
Criminal Case Conferencing Trial Regulation 2008
Cases Cited: Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197
Chompeay v R [2011] NSWCCA 96
Do v R [2010] NSWCCA 182
Greer v R [2011] NSWCCA 40
Ibbs v The Queen [1987] HCA 46; (1987) 163 CLR 447
LJ v R [2010] NSWCCA 289
Marlow v R [1990] Tas R 1
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
R v Borkowski [2009] NSWCCA 102; (2009) 52 MVR 528
R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
S v Recorder of Manchester [1971] AC 481
Tran v R [2010] NSWCCA 183
Category: Principal judgment
Parties: Jack Passaris (Applicant)
Crown (Respondent)
Representation: S Corish (Applicant)
V Lydiard (Respondent)
Legal Aid Commission of New South Wales (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/7835
Decision under appeal

Jurisdiction:

9101

Before:

Sorby DCJ

File Number(s):

2009/7835

Judgment

BATHURST CJ : I have had the privilege of reading the judgments of Hall J and Harrison J in draft. Each of their Honours agrees that leave to appeal should be granted but the appeal should be dismissed. I agree with those orders for the reasons given by Harrison J, subject to what I have said below concerning the operation of the Criminal Case Conferencing Trial Act2008 ("the Act").

As Harrison J has pointed out, the question of whether the sentencing judge erred in failing to give consideration under s 17(4) of the Act, to whether the applicant was entitled to a greater discount in respect of his plea to that provided for in s 17(2), depended in the present case on whether the pre-condition to s 17(5)(b) of the Act was satisfied; namely, whether the compulsory conference certificate recorded an offer by the offender to plead guilty to an alternative offence that was refused by the prosecution before committal for trial, and accepted by the prosecution after committal for trial.

As Harrison J further pointed out, the compulsory conference certificate, incorrectly stated to be a "Pre-Conference Disclosure Certificate", certified that the accused offered to plead guilty to the offence of recklessly causing grievous bodily harm in contravention of s 35 of the Crimes Act1900 , and the Director of Public Prosecutions…

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 Passaris v The Queen

Details

AGLC: Passaris v The Queen [2011] NSWCCA 216
Case: [2011] NSWCCA 216
Decision Date: 26 September 2011

CaseChat Overview and Summary

In the case of Passaris v The Queen, the appellant, Passaris, sought to appeal against his sentence. The appeal was focused on the contention that the sentencing judge had not correctly considered the provisions of the Criminal Case Conferencing Trial Act 2008. The appeal was heard by the High Court of Australia. The primary issue before the court was whether the failure to properly consider the Act constituted a miscarriage of the exercise of the sentencing discretion. Additionally, the court had to determine whether the error warranted the granting of leave to appeal and subsequently if the appeal should be dismissed.

The High Court considered that the failure to properly consider the provisions of the Act did not amount to a miscarriage of the sentencing discretion. The court held that the sentence imposed was within the range of sentences that could be considered appropriate under the circumstances of the case. The failure to have regard to the Act did not result in an unjust outcome for the appellant. Consequently, the court granted leave to appeal but dismissed the appeal itself, finding no basis to alter the sentence imposed by the trial judge.

The court's reasoning was based on the principle that the sentence imposed was not so manifestly excessive or inadequate as to amount to a miscarriage of justice. The court emphasised that the sentencing judge had exercised their discretion in a manner that was consistent with the legal standards applicable at the time of sentencing. The High Court was satisfied that the sentence was not affected by the error in failing to consider the Act, as the outcome would not have been different had the correct procedures been followed. The final orders of the court were to dismiss the appeal, affirming the sentence imposed by the trial judge.

Orders