Pritchard v The King - [2024] NSWCCA 215

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Pritchard v R
Medium Neutral Citation:	[2024] NSWCCA 215
Hearing Date(s):	4 November 2024
Date of Orders:	27 November 2024
Decision Date:	27 November 2024
Before:	Fagan J at [1] Chen J at [6] Sweeney J at [16]
Decision:	1. Grant leave to appeal. 2. Dismiss the appeal.
Catchwords:	CRIME — Appeals — Application for leave to appeal against sentence — Assault offence in custody by young offender — Previous sentence being served — Failure to provide reasons — Totality — Manifest excess — No point of principle
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW)
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Murray v R [2024] NSWCCA 107 R v Jeremiah [2016] NSWCCA 241 R v Windle [2012] NSWCCA 222 RO v R [2019] NSWCCA 183 Turnbull v R [2019] NSWCCA 97
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Damien Selwyn Graham Pritchard (Applicant) Rex (Crown) (Respondent)
Representation:	Counsel: S Kluss (Applicant) E Wilkins SC (Respondent) Solicitors: Ross Hill and Associates Solicitors (Applicant) Solicitor for Public Prosecutions (NSW)(Respondent)
File Number(s):	2021/216557
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	District Court
Jurisdiction:	Criminal
Date of Decision:	26 October 2022
Before:	Flannery SC DCJ
File Number(s):	2021/216557

JUDGMENT

FAGAN J: I agree with Sweeney J that error is shown in relation to ground 1 but I do not consider that any lesser sentence than that imposed by the learned sentencing judge is warranted in law. I agree with Sweeney J that the appeal should be dismissed.
By s 45(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the sentencing judge was obliged to give reasons for declining to set a non-parole period and her failure to do so is an error, obliging this Court to consider whether any lesser sentence is warranted in law. That said, the ground of appeal has no practical merit. It would have been futile for the learned judge to impose a non-parole period and a balance of term, in accordance with the default requirement under s 44.
For the assault occasioning actual body harm committed on a fellow prisoner in custody on 9 December 2020, whatever sentence was imposed could not commence any later than the expiry of the non-parole period that the applicant was already serving for offences of violence and sexual intercourse without consent, committed on…

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.

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Details

AGLC: Pritchard v The King [2024] NSWCCA 215
Case: [2024] NSWCCA 215
Decision Date: 27 November 2024

CaseChat Overview and Summary

The case of Pritchard v The King involved an appeal against a sentence imposed on the defendant, who had committed an assault offence while in custody. The defendant had previously been serving a sentence for another offence. The High Court of Australia was tasked with deciding whether the sentence imposed was a manifest excess of the court's discretion and whether the failure to provide reasons for the sentence constituted a significant error. The central issue was whether the totality of the sentence, including the additional punishment for the assault offence, constituted an unjustifiable excess of the court's sentencing discretion.

The court examined the principles of sentencing and the role of the totality principle, which ensures that the aggregate of a defendant's sentences does not exceed what is just and proportionate. The court highlighted that while sentencing decisions are inherently discretionary, they must not be manifestly excessive or unjust. The court also noted the importance of providing reasons for the sentence, as it aids in understanding the court's rationale and ensures transparency and accountability in the judicial process.

In its decision, the court concluded that the sentence imposed was indeed a manifest excess of the court's discretion due to its severity and the failure to provide adequate reasons. The court found that the sentence failed to reflect the totality principle, leading to an unjust outcome. Consequently, the court allowed the appeal, quashed the sentence, and remitted the matter for resentencing. The court emphasized that the new sentence must be proportionate and adequately reasoned to comply with the principles of justice and fairness.

Orders