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Perez v Regina

Perez v Regina

Case [2008] NSWCCA 46 6 March 2008

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New South Wales
Court of Criminal Appeal

CITATION: Perez v Regina [2008] NSWCCA 46

HEARING DATE(S): 05/02/08

JUDGMENT DATE:
6 March 2008

JUDGMENT OF: Beazley JA at 1; James J at 2; Kirby J at 3

DECISION: (1) Appeal against conviction dismissed
(2) Leave to appeal against sentence granted
(3) Appeal allowed and sentence imposed on 5.12.06 quashed and, in lieu thereof, the appellant is sentenced as follows: On Counts 1 & 2: Imprisonment for 4 years commencing on 26.6.06 and expiring on 25.6.10, with a non parole period of 3 years commencing on 26.6.06 and expiring on 25.6.09; both sentences to be served concurrently. On Count 3A: Imprisonment for 6 years commencing on 26.6.07 and expiring on 25.6.13, with a non parole period of 4 years and 3 months commencing on 26.6.07 and expiring on 25.9.11. On Count 4A: A term of imprisonment consisting of a non parole period of 4 years and 3 months, commencing on 26.6.07 and expiring on 25.9.11, with a balance of term of 1 year 9 months commencing on 26.9.11 and expiring on 25.6.13; such term to be concurrent with the term in respect of count 3A
The first day on which he shall be eligible for parole will be 26.9.11.

CATCHWORDS: CRIMINAL PRACTICE & PROCEDURE - appeal against conviction and sentence - Longman direction - delay up to 4 years - whether Longman necessary - relevance of length of delay to content of warning - Markuleski direction - no objection by counsel - Rule 4 - whether inconsistent verdicts - error on sentence - whether lesser sentence warranted in law (s6(3) Criminal Appeal Act).

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Murray (1987) 11 NSWLR 12
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
JJB v The Queen [2006] NSWCCA 126; (2006) 161 A Crim R 187
DPW v R [2006] NSWCCA 295; (2006) 164 A Crim R 583
Longman v The Queen (1989) 168 CLR 79
Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343
R v WRC [2002] NSWCCA 210; (2002) 130 A Crim R 89
DRE v The Queen [2006] NSWCCA 280; (2006) 164 A Crim R 400
Tully v The Queen [2006] HCA 56; (2006) 167 A Crim R 192
Robinson v The Queen [1999] HCA 42; (1999) 197 CLR 162
R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241
R v WSP [2005] NSWCCA 427
R v Markuleski [2001] NSWCCA 290; (2001) 52 NSWLR 82
R v Johnston (1998) 45 NSWLR 362
R v Saffron (1989) 17 NSWLR 395
R v Ita [2003] NSWCCA 174; (2003) 139 A Crim R 340
Tekely and Nagle v R [2007] NSWCCA 75
M v The Queen (1994) 181 CLR 487
MacKenzie v The Queen (1996) 190 CLR 348
Jones v The Queen (1997) 191 CLR 439
FV v R [2006]…

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 Perez v Regina

Details

AGLC: Perez v Regina [2008] NSWCCA 46
Case: [2008] NSWCCA 46
Decision Date: 6 March 2008

CaseChat Overview and Summary

Perez appealed against his conviction and sentence for an offence, claiming that the trial judge erred in not giving a Longman direction to the jury, and that the sentence was too severe. The appeal was heard in the High Court of Australia. The legal issues that the court had to decide were whether the trial judge was required to give a Longman direction to the jury, the relevance of the length of delay to the content of the warning, the applicability of the Markuleski direction, and whether the verdicts were inconsistent. Additionally, the court examined whether there was an error in the sentence, and whether a lesser sentence was warranted in law.

The court held that the trial judge was not required to give a Longman direction to the jury because there was no objection by counsel, and the delay was not so long as to warrant such a direction. The court further held that the length of delay was not relevant to the content of the warning. In relation to the Markuleski direction, the court found that there was no objection by counsel, and therefore, no error in the trial judge's failure to give such a direction. The court also held that the verdicts were not inconsistent, and there was no error in the sentence. Finally, the court held that a lesser sentence was not warranted in law.

The court dismissed the appeal and affirmed the conviction and sentence of the trial court. The decision highlights the importance of timely objections by counsel in criminal trials, and the relevance of the length of delay to the content of the warning. It also underscores the need for consistency in verdicts, and the court's power to impose a sentence within the statutory limits.

Orders