Legal Research
Cases
Porter v R

Porter v R

Case [2008] NSWCCA 145 26 June 2008

Criminal Liability

Sentencing

Break Enter and Steal

Maliciously Damage Property by Fire

Criminal Law

No judgment structure available for this case.

Type to search within this case.

New South Wales
Court of Criminal Appeal

CITATION: Porter v R [2008] NSWCCA 145

HEARING DATE(S): 7 May 2008

JUDGMENT DATE:
26 June 2008

JUDGMENT OF: Bell JA at 1; Johnson J at 2; McCallum J at 98

DECISION: 1. Leave granted to appeal against sentences imposed on 26 April 2007 in the Orange District Court.
2. Appeal allowed and sentences imposed on 26 April 2007 quashed. In lieu thereof, the Applicant is sentenced:
(a) for the offence of break, enter and steal on Bradley’s Florist shop - imprisonment for a fixed term of 12 months to date from 1 March 2007 and to expire on 29 February 2008;
(b) with respect to each of the five offences under s.195(b) Crimes Act 1900 - imprisonment by way of a non-parole period of two years and six months commencing on 1 September 2007 and expiring on 28 February 2010 with a balance of term of two years and three months commencing on 1 March 2010 and expiring on 31 May 2012;
(c) for the offence of break, enter and steal on Swish Homes and Living - imprisonment for a fixed term of 18 months to date from 1 December 2007 and to expire on 31 May 2009.
3. The earliest date upon which the Applicant will be eligible for release on parole is 28 February 2010. Confirm recommendation that Applicant be placed in a young offenders programme and be provided with psychological counselling whilst in custody.

CATCHWORDS: CRIMINAL LAW - sentencing - break enter and steal - maliciously damage property by fire - burglary offences on small business premises in commercial building in regional centre - setting fire to curtain in shop during burglary - resulting fire causes substantial damage to small business premises in building - principles applicable in sentencing arson offender - relevance on sentence of harm and loss to small business persons resulting from arson offences - meaning of "conditional liberty" in s.21A(2)(j) Crimes (Sentencing Procedure) Act 1999 - error in approach to accumulation, concurrency and totality - head sentence excessive - non-parole period not excessive

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

CATEGORY: Principal judgment

CASES CITED: R v Wickham [2004] NSWCCA 193
R v Lilley (2004) 150 A Crim R 591
R v Elyard [2006] NSWCCA 43
R v FD [2006] NSWCCA 31
R v JCW (2000) 112 A Crim R 466
Siganto v The Queen (1998) 194 CLR 656
R v Webb [1971] VR 147 at 150-151
R v P (1992) 64 A Crim R 381
Director of Public Prosecutions (Vic) v Bright (2006) 163 A Crim R 538
R v Davies (2006) 164 A Crim R 353
R v Baker [2000] NSWCCA 85
R v Pitt [2001] NSWCCA 156
R v Glover [2002] NSWCCA 376
R v Elzakhem [2008] NSWCCA 31
R v Bloomfield (1998) 44 NSWLR 734
Wong v The Queen [2001] 207 CLR 584
R v AEM and Others [2002] NSWCCA 58
R v Morgan…

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 Porter v R

Details

AGLC: Porter v R [2008] NSWCCA 145
Case: [2008] NSWCCA 145
Decision Date: 26 June 2008

CaseChat Overview and Summary

In the case of Porter v R, the defendant was convicted of burglary and arson offences. The defendant broke and entered a small business premises in a commercial building in a regional centre, stole property, and maliciously damaged property by fire, resulting in substantial damage to the business premises. The case was heard by the New South Wales Court of Criminal Appeal. The primary legal issue before the court was the sentencing principles applicable to an arson offender, particularly in relation to the harm and loss caused to small business persons. The court also considered the meaning of "conditional liberty" under section 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999, and whether there was an error in the approach to accumulation, concurrency, and totality of the sentences.

The court found that the sentence imposed by the trial judge was excessive in relation to the head sentence, but not in relation to the non-parole period. The appeal against sentence was allowed, and the case was remitted to the District Court for re-sentencing. The court held that while the defendant's actions caused significant harm and loss to the small business persons, the sentence should be proportionate to the offending. The court also found that the trial judge had erred in his approach to accumulation, concurrency, and totality, which led to an excessive head sentence. However, the non-parole period was deemed not excessive, taking into account the totality of the circumstances.

The court emphasised the importance of considering the principles of sentencing in cases involving arson offences, particularly the harm and loss caused to small business persons. The meaning of "conditional liberty" under section 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 was also considered, with the court finding that the trial judge had not adequately addressed this factor in his sentencing decision. The court's decision highlights the need for careful consideration of the principles of sentencing in cases involving arson offences, and the importance of proportionality in determining an appropriate sentence.

Orders