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Potts v R

Potts v R

Case [2017] NSWCCA 10 15 February 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Potts v R [2017] NSWCCA 10
Hearing dates: 2 February 2017
Decision date: 15 February 2017
Before: Basten JA at [1];
Johnson J at [8];
Button J at [34]
Decision:
(1)   Leave to appeal granted.

(2)   Appeal against sentence allowed.

(3)   The sentence imposed by Judge Colefax SC upon the applicant on 3 December 2014 is quashed.
(4)   In its place, the applicant is sentenced to a non-parole period of 2 years and 6 months, to date from 24 April 2014, and which expired on 23 October 2016, with a parole period of 10 months to expire on 23 August 2017.
Catchwords:
CRIMINAL LAW – appeal against sentence – erroneous reference to standard non-parole period when sentencing for attempted aggravated break, enter and steal – appeal allowed – offender re-sentenced
CRIMINAL LAW – appeal against sentence – finding of “special circumstances” – variation of period of mandatory custody when sentences accumulated – whether appropriate on re-sentence where non-parole period has already expired – Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Legislation Cited: Crimes Act 1900 (NSW), ss 105A(1)(b), 112(2), 344A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 44, Div 1A
Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
D A C v R [2006] NSWCCA 265
Jinnette v R [2012] NSWCCA 217
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R [2016] NSWCCA 255
McGrath v R (2010) 199 A Crim R 527; [2010] NSWCCA 48
R v Doorey [2000] NSWCCA 456
R v Harris (2007) 171 A Crim R 267; [2007] NSWCCA 130
R v Maher [2004] NSWCCA 177
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Schofield (2003) 138 A Crim R 19; [2003] NSWCCA 3
Category: Principal judgment
Parties: Jason Potts (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Francis (Applicant)
N Williams (Respondent)
Solicitors:
C Hunter (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/199174
Decision under appeal

Court or tribunal:

District Court at Parramatta

Jurisdiction:

Criminal

Date of Decision:

03 December 2014

Before:

Colefax SC DCJ

File Number(s):

2013/199714

Judgment

BASTEN JA: I agree with Button J that the sentencing judge erred in accepting that the standard non-parole period applied to this offence, which involved an attempt, rather than the completed offence. It did not, on the basis of the authority referred to by Button J.
This was not a case of the judge turning over a red herring in order to identify and then discard it. Further, although it is sometimes said that a standard non-parole period does not “apply” to a case dealt with on a plea of guilty, it remains available as a relevant guidepost to be considered by the sentencing judge. In this case, the standard non-parole period did not “apply” in a stronger (legal) sense; it did not constitute a guidepost at…

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 Potts v R

Details

AGLC: Potts v R [2017] NSWCCA 10
Case: [2017] NSWCCA 10
Decision Date: 15 February 2017

CaseChat Overview and Summary

The appeal, heard by the Court of Criminal Appeal of New South Wales, was brought by the appellant, Potts, against the sentence imposed by the Supreme Court. Potts was found guilty of attempted aggravated break, enter and steal. The contention was that the Supreme Court had erred in its sentencing by incorrectly referencing the standard non-parole period applicable to the crime, and that this error warranted an appeal. Furthermore, Potts challenged the finding of "special circumstances" which influenced the variation of the period of mandatory custody when sentences were accumulated. The central issue for the Court of Criminal Appeal was to determine whether the Supreme Court had erred in its sentencing and, if so, to what extent this error required the sentence to be altered.

The Court of Criminal Appeal carefully reviewed the sentencing principles and statutory provisions, particularly under the Crimes (Sentencing Procedure) Act 1999 (NSW). The court noted that the Supreme Court had indeed made an error by incorrectly referencing the standard non-parole period. This misapplication of the law required the sentence to be revisited. Additionally, the court examined the evidence and submissions regarding the finding of "special circumstances" and whether this warranted a variation in the mandatory custody period. The Court of Criminal Appeal found that the original sentence needed correction due to the identified errors. Consequently, Potts was re-sentenced, with the court ensuring that the new sentence complied with the statutory requirements and accurately reflected the nature of the offence.

The Court of Criminal Appeal allowed the appeal and ordered a re-sentencing of Potts. The re-sentencing addressed the identified errors and ensured that the sentence was aligned with the correct legal standards and statutory provisions. The court emphasised that the re-sentencing was necessary to rectify the errors made by the Supreme Court and to ensure that Potts received a sentence that accurately reflected the seriousness of the offence and the relevant sentencing principles.

Orders