Legal Research
Cases
Perrin v R

Perrin v R

Case [2006] NSWCCA 64 15 March 2006

Sentencing

Admissibility of Evidence

Criminal Liability

Criminal Law

Type to search within this case.

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Perrin v Regina [2006] NSWCCA 64

FILE NUMBER(S):
2005/2300

HEARING DATE(S): 1 March 2006

DECISION DATE: 15/03/2006

PARTIES:
Leigh Paul Perrin v Regina

JUDGMENT OF: McClellan CJ at CL Rothman J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3323

LOWER COURT JUDICIAL OFFICER: Williams DCJ

COUNSEL:
(A) J Stratton SC
(C) P Ingram

SOLICITORS:
(A) P Hardin
(C) S Kavanagh

CATCHWORDS:
Sentencing judge confined to evidence admissible against offender and not take into account evidence admitted against co-offenders - CCA concentrates on sentencing remarks and approaches warily comments during submissions - criminality of offender incorrectly elevated - sentence manifestly excessive,

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999

DECISION:
See para 46

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2300
McCLELLAN CJ at CL

ROTHMAN J
SMART AJ

Wednesday, 15 March 2006

Leigh Paul PERRIN v REGINA
Judgment

McCLELLAN CJ at CL: I agree with Smart AJ

ROTHMAN J: I agree with Smart AJ.

SMART AJ: Leigh Paul Perrin seeks leave to appeal, against a sentence comprising a non-parole period of 4 years commencing on 19 May 2005 and a parole period of 2 years commencing on 19 May 2009 for the offence of sexual intercourse without consent, taking into account the offence of aggravated indecent assault. The maximum penalty for the principal offence is 14 years imprisonment and the standard non-parole period is 7 years imprisonment. The maximum penalty for the offence taken into account is 7 years imprisonment and the standard non-parole period is 5 years imprisonment. The offences were alleged to have occurred about 4 May 2003.

On 5 December 2003 the applicant and four other men were each arraigned on three counts of aggravated sexual intercourse without consent. A co-accused was also arraigned on a charge of supplying amphetamine.

In October 2004 there were preliminary proceedings before the trial judge to determine the admissibility of certain materials into evidence and to allow certain Crown witnesses to be examined. On 27 October 2004 the judge ruled, amongst other things, that the record of interview of the applicant was admissible. That led to negotiations between the legal representatives of the Crown and the applicant. On 28 October 2004 a fresh indictment was presented against the applicant only, containing a single count of sexual intercourse without consent. Significantly, the feature of aggravation had been dropped. This meant that the applicant was no longer being charged with committing the offence in company. To this charge the applicant pleaded guilty. He also asked the judge to take into account one count of aggravated indecent assault on a Form One. The count of sexual intercourse involved penile/vaginal intercourse for a relatively brief period. The aggravated indecent assault involved the applicant putting his penis in the face of the complainant without her consent whilst in the company of another.

After the applicant’s plea was entered his counsel said:
“… the factual basis on which … this offender will be sentenced are those…

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 Perrin v R

Details

AGLC: Perrin v R [2006] NSWCCA 64
Case: [2006] NSWCCA 64
Decision Date: 15 March 2006

CaseChat Overview and Summary

The case of Perrin v R involves the appellant, Perrin, who was convicted of various criminal offences. The appeal focuses on the sentencing phase, where the primary issue is whether the sentencing judge improperly considered evidence that was not admissible against the appellant, specifically evidence related to the co-offenders. The Court of Criminal Appeal (CCA) was tasked with reviewing the sentence and determining whether the judge's consideration of such evidence led to an unjust outcome. The court examined whether the criminality of the appellant was incorrectly magnified due to the inclusion of inadmissible evidence, and whether the sentence imposed was manifestly excessive.

The CCA meticulously analysed the sentencing remarks and was cautious in interpreting comments made during the submissions. The court emphasised that the sentencing judge should only consider evidence that is admissible against the offender in question. The CCA was concerned that the judge might have given undue weight to evidence that was not relevant to the appellant's culpability, thus potentially elevating the perceived criminality of the appellant. This misstep could have resulted in a harsher sentence than what was justified solely on the basis of the appellant's own actions and circumstances. The court's approach was to ensure that the sentence reflected a fair assessment of the appellant's individual criminal conduct.

The CCA concluded that the sentence was indeed manifestly excessive due to the inappropriate consideration of inadmissible evidence. The court found that the inclusion of such evidence led to an inflated view of the appellant's criminal conduct, which in turn affected the sentencing decision. The CCA acknowledged the importance of maintaining the integrity of the sentencing process by ensuring that judges do not improperly elevate the criminality of the offender. Consequently, the CCA determined that the sentence was not proportionate to the appellant's actual culpability and ordered a retrial or a reconsideration of the sentence to correct this error.

Orders