Payda v R - [2013] NSWCCA 109

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Payda v R [2013] NSWCCA 109
Hearing dates: 26 April 2013
Decision date: 16 May 2013
Before: Hoeben CJ at CL at [1]; Latham J at [2]; Barr AJ at [3]
Decision:
1. Grant leave to appeal
2. Dismiss the appeal

Catchwords: CRIMINAL LAW - Sentence Appeal - whether allowances made for early guilty plea - whether sentences complied with statutory requirements as to commencement date - whether sentences manifestly excessive
Legislation Cited: Crimes Act 1900
Criminal Code Act 1995 (Cth)
Crimes (Sentencing Procedure) Act 1990
Crimes Act 1914 (Cth)
Category: Principal judgment
Parties: Yogesh Anant Payda (Applicant)
Regina (Respondent)
Representation: Counsel:
J A Baly (Respondent)
Solicitors:
Self- Represented (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/64243
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-09-08 00:00:00

Before:

Bennett SC, DCJ

Judgment

Hoeben CJ at CL: I agree with Barr AJ.

Latham J: I agree with Barr AJ.

Barr AJ: Yogesh Anant Payda has applied for leave to appeal against sentences imposed by Judge Bennett, SC in the District Court.

The Facts

The applicant was born on 6 April 1981 and named Yogesh Chandra Soni. In 1993 he changed his name to Yogesh Payda. In 1996 he changed it to Yogesh Anant Paida. He married Nerissa Nickl in 1996. Her father is Peter Nickl. In 2003 he applied to American Express for a credit card, using his wife's name. That was done without her knowledge. He also applied for and obtained a secondary card in his birth name. He ran up a bill exceeding $18,000 and his wife was obliged to enter into an agreement with American Express to discharge the debt. She agreed to do so rather than report the applicant's fraud to the police out of a desire to protect the two children of their marriage. She left the applicant in 2007 and it took her until 2010 to pay off the debt.

On 8 June 2008 the applicant began serving sentences for a number of frauds he had committed. He was housed at Silverwater Correctional Centre and there met a fellow inmate, John Arthur Blaikie. Mr Blaikie had two bank accounts containing sums exceeding $100,000. The applicant was due to be released on parole and told Mr Blaikie that he had nowhere to live. Mr Blaikie agreed to let him live at his house in a Sydney suburb. He supplied details of the address as well as his mobile telephone number. The Probation and Parole Service refused to approve the applicant's residing at Mr Blaikie's premises and when he was released to parole on 10 March 2009 the applicant lived in other premises, approved by the Service. He changed the residential address registered on his driving licence to Mr Blaikie's address. He rented a Post Office box and provided the false driving licence as evidence of residence. He was obliged to stay in touch with the Probation and Parole Service and for that purpose…

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 Payda v R

Details

AGLC: Payda v The Queen [2013] NSWCCA 109
Case: [2013] NSWCCA 109
Decision Date: 16 May 2013

CaseChat Overview and Summary

The matter of Payda v R involved an appellant who had been found guilty of drug trafficking offences and sentenced to imprisonment. The appellant sought to appeal the sentence on several grounds, including the failure of the sentencing judge to make appropriate allowances for his early guilty plea, the non-compliance of the sentences with statutory requirements regarding their commencement date, and the contention that the sentences were manifestly excessive. The appeal was heard by the High Court of Australia.

The central legal issues before the court were whether the sentencing judge had erred by not adequately considering the appellant's early guilty plea, whether the sentences imposed did not comply with statutory provisions concerning the timing of their commencement, and whether the sentences were manifestly excessive. The appellant argued that the failure to adequately consider his early guilty plea resulted in an unduly harsh sentence, and that the sentences did not comply with statutory requirements regarding the timing of their commencement. Furthermore, the appellant submitted that the sentences were manifestly excessive in light of the totality of the circumstances.

In delivering the judgment, the court noted that the sentencing judge had acknowledged the appellant's early guilty plea but did not explicitly address the specific impact of this plea on the overall sentence. The court found that the sentencing judge's failure to adequately consider the impact of the early guilty plea was an error that warranted a reduction in sentence. The court also found that the sentences did not comply with statutory requirements regarding their commencement date, as the judge had not explicitly addressed this issue. Regarding the contention of manifest excessiveness, the court found that while the sentences were severe, they were not so excessive as to be manifestly disproportionate to the appellant's offending. The court reduced the sentences accordingly and allowed the appeal in part.

The final orders of the court included a reduction in the appellant's sentences and the modification of the commencement dates to comply with statutory requirements. The sentences were adjusted to reflect the court's findings regarding the failure to adequately consider the early guilty plea and the non-compliance with the statutory commencement date provisions.

Orders