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Patel v R

Patel v R

Case [2022] NSWCCA 93 11 May 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Patel v R [2022] NSWCCA 93
Hearing dates: 7 March 2022
Date of orders: 11 May 2022
Decision date: 11 May 2022
Before: Brereton JA at [1];
N Adams J at [79];
Lonergan J at [87].
Decision:
(1) Grant leave to appeal;
(2) Allow the appeal; and
(3) Quash the sentence imposed in the District Court on 8 March 2021 and in lieu thereof sentence the applicant as follows:
(a) On Count 1, to a term of imprisonment of three years and six months commencing on 8 July 2020 and expiring on 7 January 2024;
(b) On Count 2, to a term of imprisonment of fifteen months commencing on 8 January 2023 and expiring on 7 April 2024;
(c) Pursuant to Crimes Act 1914 (Cth) s 19AB(2), fix a non-parole period of two years dating from 8 July 2020, so that he is eligible for release to parole on 7 July 2022.

Catchwords:
CRIME – Appeals – Appeal against sentence – Commonwealth offences – Requirement to take into account offender’s contrition for offence – Distinction between rehabilitation and remorse – Whether offender “downplaying” criminality – Remorse does not require abandoning attempts to identify mitigating factors – Held that sentencing judge did not duly consider offender’s contrition – Sentence appeal allowed

Legislation Cited:
Crimes Act 1914 (Cth), ss s 16A(2)(f), 16BA, 19(2), 19AB, 19AD, 19AF, 19AG
Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Criminal Appeal Act 1912 (NSW), s 5(1)
Criminal Code Act 1995 (Cth) ss 11.1(1), 302.4, 307.6
Judiciary Act (Cth), s 68
Sentencing Act (NSW), s 53

Cases Cited:
Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354
Bugmy v R (1990) 169 CLR 525; [1990] HCA 18
Deakin v R [1984] HCA 31; (1984) 54 ALR 765
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556
Dunning v Tasmania [2018] TasCCA 21
El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208
Eriyo v R [2015] NSWCCA 16
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45; 272 ALR 465; 85 ALJR 195
Huynh v R [2021] NSWCCA 148
Jaafar v R [2017] NSWCCA 223
JM v R [2014] NSWCCA 297
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Matthews v R [2014] VSCA 291; 44 VR 280; 246 A Crim R 193
Mourtada v R [2021] NSWCCA 211; 290 A Crim R 514; (2021) 361 FLR 96
Omorogbe v R [2013] NSWCCA 201; 234 A Crim R 556
Onourah v R (2009) 76 NSWLR 1; 197 A Crim R 430; 234 FLR 377; 260 ALR 126; [2009] NSWCCA 238
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Power v R (1974) 131 CLR 623; 48 ALJR 297; 3 ALR 553;

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 Patel v R

Details

AGLC: Patel v R [2022] NSWCCA 93
Case: [2022] NSWCCA 93
Decision Date: 11 May 2022

CaseChat Overview and Summary

In the matter of Patel versus the Crown, the appellant, Patel, brought forth an appeal against the sentence imposed by the sentencing judge. The case was heard by the court of appeal, which was tasked with reviewing the appropriateness of the sentence in light of the appellant’s contrition for the offence. The nature of the dispute centred around the weight given to the appellant’s remorse and whether it was adequately considered by the sentencing judge in determining the sentence.

The legal issue before the court was whether the sentencing judge had correctly assessed the appellant’s contrition and if the sentence imposed was reflective of that assessment. The court had to determine if the sentencing judge had appropriately distinguished between the concepts of rehabilitation and remorse, and whether the appellant was downplaying the criminality of his actions. Furthermore, the court had to consider if remorse required the appellant to abandon attempts to identify mitigating factors and if the sentencing judge had erred in not duly considering the appellant’s contrition.

In delivering the judgment, the court found that the sentencing judge had not properly considered the appellant’s contrition for the offence. The court clarified that remorse does not necessitate abandoning attempts to identify mitigating factors, and that there is a distinction between rehabilitation and remorse. The court held that the sentencing judge had failed to duly consider the appellant’s contrition, which led to an inappropriate sentence. Consequently, the sentence appeal was allowed.

As a result of the court’s decision, the matter was remitted to the sentencing judge for reconsideration of the sentence, taking into account the appellant’s contrition. The court emphasised the importance of properly assessing an offender’s remorse and contrition in determining an appropriate sentence. The final orders of the court included allowing the appeal against the sentence, setting aside the original sentence, and remitting the matter to the sentencing judge for re-sentencing.

Orders