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Pritchard v R

Pritchard v R

Case [2022] NSWCCA 130 22 June 2022

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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

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 Pritchard v R

Details

AGLC: Pritchard v R [2022] NSWCCA 130
Case: [2022] NSWCCA 130
Decision Date: 22 June 2022

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