Postlewaight v The Queen - [2011] NSWCCA 279

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Postlewaight v R [2011] NSWCCA 279
Hearing dates: 26 September 2011
Decision date: 16 December 2011
Before: Whealy JA, Hislop, Latham JJ
Decision:
Leave to appeal granted; appeal dismissed.

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Ferrett (No 4) [2010] NSWSC 956
R v Quach [2002] NSWSC 1205
R v Faulkner [2000] NSWSC 944
R v Galea [2000] NSWSC 301
Hawken v R (1986) 27 A Crim R 32
R v Tan Do (unreported, NSWCCA, 7 May 1997)
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357)
R v Holder (1983) 3 NSWLR 245
Whittaker v The King (1928) 41 CLR 230
R v Tait (1979) 46 FLR 386
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
R v Hammoud (2000) 118 A Crim R 66
R v Farroukh (unreported, NSWCCA, 29 March 1996)
Category: Principal judgment
Parties: Jeremy Postlewaight v Regina
Representation: P. Hamill SC (Applicant)
C. Maxwell QC/S. Bowers (Crown)
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2009/62863; 2009/152594
Decision under appeal

Citation:

[2010] NSWSC 1272

Date of Decision:

2010-11-05 00:00:00

Before:

Fullerton J

File Number(s):

2009/62863, 2009/152594

Judgment

WHEALY JA : I agree with Hislop J.

HISLOP J: The applicant pleaded guilty on indictment to the following charges:

Count 1 : On 6 December 2008 Michael Christiansen did murder Paul Elliott and the applicant "knowing that Michael Christiansen committed the said murder, did assist Michael Christiansen on 7 December 2008 to dispose of Paul Elliott's body" contrary to ss 18 and 349(1) Crimes Act 1900.

Count 2 : On 14 July 2002 the applicant "did break and enter the premises at BOC Gases...and in the said premises did commit a serious indictable offence, namely, stealing a cylinder of gas, in circumstances of aggravation, namely he was in the company of Sean Waygood, Michael Christiansen, Keith Payne and another person known to police" contrary to s 112(2) of the Crimes Act 1900.

The maximum penalty for these offences was 25 years imprisonment and 20 years imprisonment respectively. There was no standard non-parole period applicable to either offence.

On 5 November 2010 the applicant was sentenced in the Supreme Court for these offences as follows:

Count 1: a non-parole period of six years and six months imprisonment to commence on 7 October 2010 and expire on 6 April 2017 with a balance of term of two years to expire on 6 April 2019.

Count 2: a fixed term of 18 months imprisonment to commence on 7 October 2009 and expire on 6 April 2011.

Thus there was imposed a total sentence of nine years and six months with a total non-parole period of seven years and six months.

The applicant had been sentenced, on appeal, to imprisonment for one year with a balance of term of two years, expiring on 7 October 2009 for the supply of drugs. The…

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 Postlewaight v The Queen

Details

AGLC: Postlewaight v The Queen [2011] NSWCCA 279
Case: [2011] NSWCCA 279
Decision Date: 16 December 2011

CaseChat Overview and Summary

Jeremy Postlewaight sought leave to appeal against his sentence imposed by Fullerton J in the Supreme Court of New South Wales. Postlewaight pleaded guilty to assisting a murderer to dispose of a body and to breaking and entering premises to steal gas cylinders. The applicant argued that the sentence was manifestly excessive, that the learned sentencing judge had erred in applying the totality principle, that she had erred in assessing the objective criminality by taking into account an irrelevant consideration, and that a different, less severe sentence was warranted. The Court of Criminal Appeal considered these grounds and found that the sentence was not so excessive as to demonstrate error on the part of the sentencing judge. The Court held that the sentencing judge was not obliged to find special circumstances and that she was entitled to take into account the applicant's introduction of the murderer to the person who hired him in assessing the objective seriousness of the offence. The appeal was dismissed, and leave to appeal was granted.

Orders