Pettersen v The Queen - [2013] NSWCCA 20

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pettersen v R [2013] NSWCCA 20
Hearing dates: 5/02/2013
Decision date: 13 February 2013
Before: Beazley JA at [1]
Fullerton J at [2]
Beech-Jones at [52]
Decision:

Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - aggravated break and enter with intent to steal - conspiracy - attempt - whether misdescription of offence and applicable penalty infected sentence - Muldrock principles
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Bell v R: Jelisavac v R [2009] NSWCCA 206
Butler v R [2012] NSWCCA 23
Diesing v R [2007] NSWCCA 326
Markarian v R [2005] HCA 25; 228 CLR 357
Muldrock v R [2011] HCA 39; 244 CLR 120
R v Ehrlich [2012] NSWCCA 38
Savvas (No 2) v R (1991) 58 A Crim R 174
Stewart v R [2012] NSWCCA 183
Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458
Category: Principal judgment
Parties: Neil Andrew Pettersen (Applicant)
The Crown (Respondent)
Representation: Counsel:
K Averre (Applicant)
H Wilson/J Michie (Crown)
Solicitors:
B Duchen (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/287342
Decision under appeal

Date of Decision:

2012-04-19 00:00:00

Before:

Norrish QC DCJ

Judgment

BEAZLEY JA: I agree with the reasons of Fullerton J and her Honour's proposed orders. I also agree with the additional remarks of Beech-Jones J.

FULLERTON J: This is an application for leave to appeal against a sentence imposed in the District Court on 19 April 2012 in respect of an offence with which the applicant was charged in September 2011 and to which he had entered a plea of guilty in the Local Court on 28 February 2012. That offence will be referred to as "the conspiracy charge".

The sentence imposed on a second offence, also the subject of charge in September 2011 and a plea of guilty, was not challenged on the application. That offence will be referred to as "the attempt charge".

The conspiracy charge attracted a sentence of imprisonment of 6 years, which, after a finding of special circumstances, comprised a non-parole period of 3 years and a balance of term of 3 years. It was laid in the following terms:

On 20 March 2011 at Rosehill in the State of New South Wales, [the applicant] did conspire to break and enter the warehouse of The Perfume Network situated at 2/142 James Ruse Drive Rosehill, and then in the said The Perfume Network warehouse did conspire to commit a serious indictable offence, to wit, steal in circumstances of aggravation, to wit, he was in company with other persons, namely Yashar Gogani and other unknown persons.

The attempt charge, committed two months after the conspiracy, related to an attempt to commit an aggravated break and enter with intent to steal from different commercial premises. That offence was laid contrary to s 113(2) and s 344A of the Crimes…

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 Pettersen v The Queen

Details

AGLC: Pettersen v The Queen [2013] NSWCCA 20
Case: [2013] NSWCCA 20
Decision Date: 13 February 2013

CaseChat Overview and Summary

The appellant, Pettersen, was convicted of conspiracy to commit aggravated break and enter with intent to steal and of an attempted aggravated break and enter with intent to steal. The appellant appealed against his sentence, arguing that there was a misdescription of the offence and applicable penalty which infected the sentence. The appeal was heard by the High Court of Australia. The central legal issue in this case was whether the misdescription of the offence and the applicable penalty resulted in an infected sentence. The appellant contended that the trial judge misdescribed the offences by not including the aggravating factor of entering with intent to steal and that this misdescription resulted in an incorrect penalty range being applied. The appellant also argued that the trial judge failed to consider the appropriate penalty range for the offence as described in the indictment.

The High Court considered the principles established in Muldrock v The Queen and found that the misdescription of the offence and applicable penalty did not necessarily result in an infected sentence. The Court held that a misdescription of an offence or penalty does not automatically result in an infected sentence. Instead, the court must consider the impact of the misdescription on the overall sentencing process. In this case, the Court found that the trial judge had considered the appropriate penalty range for the offence and that the misdescription did not have a significant impact on the overall sentencing process. The Court therefore dismissed the appeal against sentence. The Court noted that while the misdescription of the offence and penalty was an error, it did not result in a manifestly inadequate or excessive sentence. The Court found that the trial judge had considered the appropriate penalty range for the offence and that the misdescription did not have a significant impact on the overall sentencing process. The Court therefore dismissed the appeal against sentence.

Orders