Pritchard v R

Case [2022] NSWCCA 130


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Pritchard v R [2022] NSWCCA 130
Hearing dates: 21 March 2022
Date of orders: 22 June 2022
Decision date: 22 June 2022
Before: Beech-Jones CJ at CL at [1];
Price J at [2];
N Adams J at [3].
Decision:

(1) Leave to appeal granted.

(2) Appeal allowed.

(3) The aggregate sentence imposed by McLennan SC DCJ on 12 November 2020 is quashed. In lieu thereof, I impose an aggregate sentence of 9 years’ imprisonment to commence on 23 December 2019 and expire on 22 December 2028. The non-parole period is 6 years and 6 months which will expire on 22 June 2026.

Catchwords:

CRIME – appeals – appeals against sentence – applicant convicted of three offences pertaining to violent attempted sexual assault of victim in her home late at night – applicant intoxicated by alcohol – objective seriousness – no error in consideration of relevant serious indictable offence on count 1 – opportunistic but not spontaneous – remorse – s 21A(3)(i) of Sentencing Act – conflated with inability to explain offending, rehabilitation and risk of re-offending – no separate finding made despite unchallenged evidence – error established – applicant remorseful – appeal allowed – re-sentence

CRIME – property offences – aggravated enter dwelling with intent to commit serious indictable offence and break out – s 109(2) of Crimes Act – elements – whether count 2 correctly said to be a manifestation of the intent expressed in the s 109(2) offence – no error made out

Legislation Cited:

Crimes Act 1900 (NSW), ss 4, 61K(a), 61KE(a), 109(2)

Crimes (Sentencing Procedure) Act1999 (NSW), ss 21A, 44(2B)

Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)

Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases Cited:

Alvares v R Farache v R [2011] NSWCCA 33

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Butters v R [2010] NSWCCA 1

CR v R [2020] NSWCCA 289

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Firbank v R [2011] NSWCCA 171

House v The King (1936) 55 CLR 499; [19436] HCA 40

Imbornone v R [2017] NSWCCA 144

Kentwell v The Queen (2014) 252 CLR]; [2014] HCA 37

Medcalf v R [2016] NSWCCA 209

R v Biber [2018] NSWCCA 271

R v Millwood [2012] NSWCCA 2

R v O’Donoghue [2005] NSWCCA 62; 151 A Crim R 597

Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74

Stojanovski v R [2013] NSWCCA 334

The Queen v De Simoni (1981) 174 CLR 383; [1981] HCA 31

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Williams v R [2012] NSWCCA 172

Yun v R [2017] NSWCCA 317

Category:Principal judgment
Parties: Damien Pritchard (Applicant)
Regina (Respondent)
Representation:

Counsel:
R Khalilizadeh (Applicant)
C Everson SC (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2019/00403679
Publication restriction: Nil.
 Decision under appeal 
Court or tribunal:
District Court

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Pritchard v R [2022] NSWCCA 130
Case
[2022] NSWCCA 130
Decision Date

CaseChat Overview and Summary

In the case of Pritchard v R, the appellant, Pritchard, was convicted of three offences related to a violent attempted sexual assault of a victim in her home late at night. The court was required to consider the nature of the offences, the offender's intoxication, the objective seriousness of the crimes, and the offender's remorse. The primary issue for the court was whether there was an error in the consideration of the relevant serious indictable offence on count 1 and whether the offender's remorse was appropriately considered. The court found that while the offender's remorse was evident, the trial judge had conflated this with other factors such as the offender's inability to explain the offending, rehabilitation, and risk of re-offending, without making a separate finding on the offender's remorse. This was identified as an error, and as the offender was remorseful, the appeal was allowed and the case was remitted for re-sentencing.

The court held that the offender's intoxication did not diminish the objective seriousness of the crimes, and the trial judge had correctly identified the offender's actions as opportunistic but not spontaneous. The court also found that the trial judge had correctly identified the elements of the offence under section 109(2) of the Crimes Act, and there was no error in the way the count 2 offence was considered. The court concluded that while the offender's intoxication and remorse were relevant factors, the primary consideration was the objective seriousness of the crimes and the need for an appropriate sentence that reflects the gravity of the offences.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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