Pehar v The Queen - [2020] NSWCCA 118

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pehar v R [2020] NSWCCA 118
Hearing dates: 11 May 2020
Date of orders: 05 June 2020
Decision date: 05 June 2020
Before: Meagher JA at [1];
Fullerton J at [2];
Wilson J at [57]
Decision:
1. Leave to appeal granted.
2. Appeal against sentence allowed.
3. Sentence imposed by Wilson SC DCJ on 12 August 2019 is quashed and in lieu thereof an aggregate sentence of 4 years and 6 months is imposed to commence on 27 September 2018 and expire on 26 March 2023, with a non-parole period of 2 years and 3 months to expire on 26 December 2020.

Catchwords: CRIME – Appeals – Appeal against sentence – whether offences were aggravated by the fact they were committed in company – in company – sentencing error in finding the offences were committed “in company” – finding of special circumstances – indicative sentences – joint criminal enterprise – larceny – take and drive conveyance – destroy or damage property – aggravated break, enter and commit serious indictable offence
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Gore v R; Hunter v R (2010) 208 A Crim R 353; [2010] NSWCCA 330
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Newman (A Pseudonym) v R [2019] NSWCCA 157
R v Pham [2018] NSWSC 822
White v R (2016) 261 A Crim R 302; [2016] NSWCCA 190
Category: Principal judgment
Parties: Marco Pehar (Applicant)
The Crown (Respondent)
Representation:
Counsel:
P Lange (Applicant)
M Millward (Crown)
Solicitors:
Galloways Solicitors and Attorneys (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2014/160773
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

12 August 2019

Before:

Wilson SC DCJ

File Number(s):

2014/160773

Judgment

MEAGHER JA: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal the aggregate sentence imposed on 12 August 2019 following a trial before Wilson SC DCJ and a jury in which the applicant was found guilty of each of the ten offences upon which he was arraigned.
Those offences, their respective maximum penalties and the standard nonparole period that attached to count 10, together with the sentences indicated for each count, are set out in the following table:

Count

Date

Offence

Maximum Penalty & SNPP

Indicative Sentence

1

07/05/14

Larceny, contrary to s 117 of the Crimes Act

5 years’ imprisonment no SNPP

14 months

2

15/05/14

Larceny, contrary to s 117 of the Crimes Act

5 years’ imprisonment no SNPP

12 months

3

15/05/14

Larceny, contrary to s 117 of the Crimes Act

5 years’ imprisonment no SNPP

14 months

4

15/05/14

Larceny, contrary to s 117 of the Crimes Act

5 years’ imprisonment no SNPP

14 months

5

15/05/14

Larceny, contrary to s 117 of the Crimes Act

5 years’ imprisonment no…

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 Pehar v The Queen

Details

AGLC: Pehar v The Queen [2020] NSWCCA 118
Case: [2020] NSWCCA 118
Decision Date: 05 June 2020

CaseChat Overview and Summary

In the matter of Pehar v The Queen, the appellant challenged his sentence following a conviction for multiple criminal offences, including larceny, taking and driving a conveyance, and damaging property. The case was heard by the High Court of Australia, which was required to consider whether the original sentencing judge had erred in determining that the offences were committed in the company of others, thus aggravating the seriousness of the crimes. The appeal centred on the application of the relevant statutory provisions and the correct interpretation of the term “in company” within the context of the Crimes Act.

The primary legal issue was whether the trial judge correctly identified the appellant’s involvement in a joint criminal enterprise and whether the offences were indeed committed in the company of others. This determination was crucial as it impacted the severity of the sentence imposed. The court had to examine the evidence presented at the trial and the legal principles governing the concept of committing offences in company. Additionally, the court needed to assess whether the sentencing judge erred in finding special circumstances and whether the indicative sentences were appropriate given the nature and context of the crimes.

The High Court found that the trial judge had erred in concluding that the offences were committed in company. The court emphasised that for offences to be classified as such, there must be a shared intention or common purpose among the participants at the time of the offence. The evidence did not support a finding that the appellant acted in concert with others in the manner required by the statute. Consequently, the court held that the sentencing error necessitated a re-evaluation of the sentence imposed. The High Court reduced the appellant’s sentence accordingly, taking into account the correct legal framework and the nature of his participation in the criminal activities.

Orders