Patrick v The Queen; Whitney v The Queen - [2020] NSWCCA 63

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Patrick v R; Whitney v R [2020] NSWCCA 63
Hearing dates: 6 March 2020
Decision date: 15 April 2020
Before: Meagher JA at [1];
Harrison J at [2];
Button J at [3]
Decision:
Applicant Patrick:
(1) Grant leave to appeal.
(2) Dismiss the appeal.
Applicant Whitney:
(1) Grant leave to appeal.
(2) Uphold the appeal.
(3) Quash the sentence imposed by Judge Colefax SC on 30 January 2019.
(4) In substitution, Ainsley Whitney is sentenced to a non-parole period of three years to commence on 1 October 2018 and expire on 30 September 2021, to be followed by a parole period of one year, to expire on 30 September 2022.
(5)The first date upon which it appears that Mr Whitney is eligible for possible release to parole is 30 September 2021.
Catchwords:
CRIME – APPEALS – appeal against severity of sentence – reckless wounding in company – whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge erred in finding the offence of reckless wounding was aggravated by planning – whether sentences manifestly excessive – appeal dismissed
CRIME – APPEALS – appeal against severity of sentence – reckless wounding in company – whether sentencing judge erred in finding that the offence was planned – whether error established in finding offenders shared equal criminal and moral culpability – whether error in assessing objective seriousness – whether error in calculation of the commencement date of sentence – whether sentence manifestly excessive – error in calculation established – commencement date adjusted without consideration of substantive re-sentence
Legislation Cited: Crimes Act 1900 (NSW), s 345
Crimes (Sentencing Procedure) Act 1999 (NSW), 21A(2)(n)
Category: Principal judgment
Parties: Shane Patrick (Applicant)
Ainsley Whitney (Applicant)
Regina (Crown)
Representation:
Counsel:
S Schaudin (Applicant Patrick)
P Krisenthal (Applicant Whitney)
E Wilkins SC (Crown)
Solicitors:
George Sten & Co (Applicant Patrick)
Legal Aid NSW (Applicant Whitney)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2016/373257; 2016/3214512017/21272
Publication restriction: Pseudonym adopted for one person
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

30 January 2019

Before:

Colefax SC DCJ

File Number(s):

2016/373257; 2016/321451 (Patrick)
2017/21272 (Whitney)

Judgment

MEAGHER JA: I agree with Button J.
HARRISON J: I agree with Button J.
BUTTON J:

Introduction

On 30 January 2019, Mr Shane Patrick and Mr Ainsley Whitney (the applicants) were sentenced by his Honour Judge Colefax SC in the District Court sitting at Parramatta. Each seeks leave to appeal against the aggregate sentence imposed upon him.
Each of them had pleaded guilty to an offence of reckless wounding in company, which each had committed with the other. The maximum penalty for that offence is imprisonment for 10 years, and there is also a standard non-parole period of 4 years.
Mr Patrick had also admitted his guilt of a number of further offences, as follows.
The first was an offence of knowingly taking part in the supply of a…

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 Patrick v The Queen; Whitney v The Queen

Details

AGLC: Patrick v The Queen; Whitney v The Queen [2020] NSWCCA 63
Case: [2020] NSWCCA 63
Decision Date: 15 April 2020

CaseChat Overview and Summary

The appeals by Patrick and Whitney were against the severity of their sentences for reckless wounding in company. The appellants argued that the sentencing judge had erred in various respects, including the assessment of the objective seriousness of the offence, the finding that the offence was aggravated by planning, the finding that they shared equal criminal and moral culpability, the calculation of the commencement date of the sentence, and the overall severity of the sentence. The appeals were heard in the High Court of Australia. The legal issues the court had to decide included whether the sentencing judge erred in assessing the objective seriousness of the offence, whether there was an error in finding the offence was planned, whether the finding that the offenders shared equal criminal and moral culpability was erroneous, whether there was an error in calculating the commencement date of the sentence, and whether the sentences were manifestly excessive. The High Court found that the sentencing judge had erred in the calculation of the commencement date of the sentence but did not find errors in the other aspects of the sentencing. The court held that the error in calculating the commencement date was significant enough to warrant a re-sentencing without considering the substantive aspects of the sentence again. The appeals were dismissed, but the case was remitted to the lower court for the re-sentencing of the appellants.

Orders