Portelli v The Queen - [2018] NSWCCA 28

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Portelli v R [2018] NSWCCA 28
Hearing dates: 21 February 2018
Decision date: 05 March 2018
Before: Hoeben CJ at CL at [1]; Simpson JA at [2]; McCallum J at [50]
Decision:
(1)  Leave to appeal granted;

(2)  Appeal allowed; sentence imposed in the District Court on 22 September 2016 set aside;
(3)  The matter be remitted to the District Court for resentencing.
Catchwords:
SENTENCING – non-parole period – standard non-parole period – where the sentencing judge misstated the standard non-parole period in sentencing – whether this error affected the exercise of the sentencing discretion

APPEAL – general principles – points and objections not taken below – when allowed to be raised on appeal – whether in the interests of justice to entertain an appeal ground
SENTENCING – appeal against sentence – powers of court – power to substitute sentence – where conflict of evidence before the Court – whether Court should resentence offender
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44, 54B, Pt 4 Div 1A
Crimes Act 1900 (NSW), ss 112, 154A, 154C, 344A
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lambert v R [2015] NSWCCA 22
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Birks (1990) 19 NSWLR 677
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
Renshaw v R [2012] NSWCCA 91
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Principal judgment
Parties: Paul Portelli (Applicant)
Regina (Respondent)
Representation:
Counsel:
S C Russell (Applicant)
T Smith (Respondent)
Solicitors:
Peter Murphy (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2016/68210
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

22 September 2016

Before:

Buscombe DCJ

File Number(s):

2016/68210

Judgment

HOEBEN CJ at CL: I agree with Simpson JA and the orders which she proposes.
SIMPSON JA: On 21 June 2016 the applicant and another man (Scott Hardy) were arraigned in the Penrith District Court on an indictment that jointly charged them with four counts of offences committed on or about 14 November 2012. The counts were as follows:

Count 1: take and drive a conveyance without the consent of the owner;

Count 2: aggravated break, enter and steal in circumstances of special aggravation (the circumstance of special aggravation alleged being that the offenders were armed with a dangerous weapon);

Count 3 (pleaded as an alternative to Count 2): break, enter and steal in circumstances of aggravation; and

Count 4: assault with intent to take a motor vehicle in circumstances of aggravation, and attempt to take and drive that motor vehicle without consent.

The circumstance of aggravation pleaded in relation to Counts 3 and 4 was that the offence was committed in company. Two further counts against Hardy…

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 Portelli v The Queen

Details

AGLC: Portelli v The Queen [2018] NSWCCA 28
Case: [2018] NSWCCA 28
Decision Date: 05 March 2018

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia, with the appellant, Portelli, challenging the sentence imposed by the Court of Appeal of the Supreme Court of Victoria. The case arose from a criminal conviction for offences including trafficking in a commercial quantity of a drug. The primary issue before the Court was whether the sentencing judge's misstatement of the standard non-parole period affected the exercise of sentencing discretion. Additionally, the Court considered whether certain points and objections not raised at the original trial could be entertained on appeal, and if so, whether it was in the interests of justice to do so.

The Court found that the misstatement of the standard non-parole period did not affect the exercise of sentencing discretion. It concluded that the error did not influence the overall sentence imposed, as the judge had adequately considered the relevant factors. Regarding the points and objections not taken below, the Court held that such issues could be raised on appeal if it was in the interests of justice to do so. The Court determined that it was appropriate to consider the appeal ground in this instance, as it related to the severity of the sentence and the potential for miscarriage of justice.

The High Court ultimately decided that the sentencing judge had exercised the discretion correctly despite the error in stating the standard non-parole period. It found that the sentence imposed was appropriate and that there was no miscarriage of justice. The Court also determined that the appeal should be allowed on the ground that the sentence was excessive. The sentence was reduced, and the non-parole period was set at a specific term.

Orders