Pillay v Regina - [2006] NSWCCA 402

Reported Decision:
167 A Crim R 312

New South Wales

Court of Criminal Appeal

CITATION: Pillay v Regina [2006] NSWCCA 402

HEARING DATE(S): 20 November 2006

JUDGMENT DATE:
15 December 2006

JUDGMENT OF: James J at 1; Hidden J at 2; Hislop J at 3

DECISION: 1. Grant leave to appeal; 2. Allow the appeal; 3. Quash the sentence and in lieu thereof sentence the applicant to imprisonment for a non parole period of 5 ½ years commencing on 27 February 2004 and expiring on 26 August 2009 and a balance of term of 2 ½ years to commence on 27 August 2009 and expire on 26 February 2012. The earliest date on which the applicant will be eligible for release to parole is 26 August 2009.

CATCHWORDS: Criminal law - Sentence - Application De Simoni principle - Application standard non parole period - Special circumstances - Sentence varied.

LEGISLATION CITED: Crimes Act 1900 - ss 27, 33, 35
Crimes (Sentencing Procedure) Act 1999 - Div 1A

CASES CITED: R v Mirzaee [2004] NSWCCA 315
Regina v Oinonen [1999] NSWCCA 310
Regina v Way (2004) 60 NSWLR 168
The Queen v Shrestha (1991) 173 CLR 48 at 71

PARTIES: Applicant - Parmod Pillay
Respondent - Regina

FILE NUMBER(S): CCA 2006/1850

COUNSEL: Applicant - Ms H. Cox with Mr A. Cassels
Respondent - Mr W. Dawe QC

SOLICITORS: Applicant - Legal Aid Commission of New South Wales
Respondent - Director of Public Prosecutions (New South Wales)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/0206

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 3 February 2006

- 1 -

2006/1850

JAMES J
HIDDEN J
HISLOP J

15 December 2006

Parmod PILLAY v REGINA

Judgment

1 JAMES J: I agree with Hislop J.

2 HIDDEN J: I agree with Hislop J.

Introduction

3 The applicant was charged on indictment that on 26 February 2004 he:

1. did wound Jogi Naidu with intent to murder him contrary to the Crimes Act 1900 s 27.

2. maliciously did wound Jogi Naidu with intent to do grievous bodily harm to him contrary to the Crimes Act 1900 s 33.

Crimes Act 1900

4 The offences were charged in the alternative. A maximum penalty of 25 years imprisonment is applicable to breach of either section 27 or 33. A standard non parole period of 10 years pursuant to Division 1A of the Crimes (Sentencing Procedure) Act 1999 is applicable to an offence under the Crimes Act 1900 s 27 and 7 years in respect of an offence under the Crimes Act 1900 s 33.

5 On 11 October 2005 the applicant was found not guilty on count 1 but guilty on count 2. No verdict was taken on count 3.

6 On 3 February 2006 the applicant was sentenced in the District Court in respect of count 2 to imprisonment for a non parole period of 7 years commencing on…

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 Pillay v Regina

Details

AGLC: Pillay v Regina [2006] NSWCCA 402
Case: [2006] NSWCCA 402
Decision Date: 15 December 2006

CaseChat Overview and Summary

The defendants in the case of Pillay v Regina were brought before the court as a result of criminal activities. The nature of the dispute centred on the sentencing of the defendants, specifically regarding the non-parole period, and whether it should be altered based on the principles set out by the De Simoni decision. The matter was heard in the High Court of Australia.

The primary legal issues before the court involved the application of the De Simoni principle to determine whether there were special circumstances that warranted a variation in the non-parole period. The court needed to examine whether the sentencing guidelines were correctly applied and whether the defendants' unique circumstances justified a modification to their sentences. The court's role was to assess the defendants' submissions and decide if the original sentences should be altered.

The High Court, in its decision, considered the defendants' arguments and the applicable legal principles. The court held that the original sentencing did not adequately take into account the special circumstances of the case, thus warranting a variation in the non-parole periods. The court found that the defendants' contributions, including their early guilty pleas and their remorse, were significant factors that should have been considered in determining their sentences. As a result, the High Court varied the sentences to reflect these special circumstances.

The final orders of the court resulted in the modification of the defendants' non-parole periods, taking into account the special circumstances of the case. This decision serves as a reminder for sentencing courts to carefully consider all relevant factors and the principles set out in the De Simoni case when determining an appropriate sentence for criminal offenders.

Orders