PTC v The Queen - [2011] NSWCCA 51

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: PTC v R [2011] NSWCCA 51
Hearing dates: 9 February 2011
Decision date: 01 April 2011
Before: McClellan CJ at [1]
Buddin at [32]
Schmidt at [33]
Decision:
1. Leave to appeal granted and the appeal upheld.
2. Quash the sentence imposed and instead sentence the applicant to a non-parole period of 2 years and 6 months commencing on 21 December 2009 with a balance of the term of 2 years and 6 months. The applicant is eligible for release to parole on 20 June 2012

Catchwords: CRIMINAL - sentence appeal - manifest excess - proportionality with co-offender - effects of delay in sentencing - onerous custody conditions - assessment of plea discount - appeal upheld on account of delay.
Cases Cited: Mill v R (1988) 1 66 CLR 59
R v Borkowski (2009) NSWCCA 102; 195 A Crim R 1
R v K (2004) NSWCCA 130
R v Todd (1982) 2 NSWLR 517
Category: Principal judgment
Parties: PTC (Applicant)
The Crown
Representation: Counsel:
S Kluss (Applicant)
J Girdham (Crown)
Solicitors:
A W Simpson & Co (Applicant)
Director of Public Prosecutions (Crown)

File Number(s): 2009/7744
Decision under appeal

Citation:

NSWSC 834

Date of Decision:

2010-07-29 00:00:00

Before:

R A Hulme J

File Number(s):

2009/7744

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty to the manslaughter of his 7 week old son. He was sentenced to imprisonment comprising a non-parole period of 3 years with a total sentence of 5 years and 2 months. The essence of the applicant's criminality was in his failure to provide appropriate medical attention for his infant son. The baby had previously been seriously injured by the applicant's partner NLH who was the mother of the baby.

NLH was sentenced to imprisonment for 4 years and 2 months with a non-parole period of 2 years and 6 months. The sentencing judge reduced her sentence by 30% on account of her plea of guilty and assistance to authorities. The notional starting point for the applicant's sentence was approximately 5 years and 5 months, his Honour allowing a discount of 5% for the plea.

There was an agreed statement of facts which was adopted by the sentencing judge. It was in the following terms:

"7 NLH and the offender had a daughter, PJC, who was born in early 2005. She had been taken into the care of the Department of Community Services when only a few months old but returned to the care of her parents later that year.

8 The couple took up residence in a vacant house on a property known as "Glen Oval", about 20 kilometres from the township of Bingara, sometime in 2005.

9 TC from born on 19 March 2006 at Bellingen Hospital. NLH, was aged 18 at the time and the offender was aged 24. NLH assumed primary care responsibilities for TC. The offender would sometimes feed him with a bottle. When he was about a month old, NLH…

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 PTC v The Queen

Details

AGLC: PTC v The Queen [2011] NSWCCA 51
Case: [2011] NSWCCA 51
Decision Date: 01 April 2011

CaseChat Overview and Summary

In the case of PTC v The Queen, the appellant challenged the sentence imposed by the Supreme Court of New South Wales, arguing that it was manifestly excessive. The appellant was convicted of drug trafficking and sentenced to imprisonment, with a plea discount applied. The High Court was asked to determine whether the sentence was proportionate to the crime, taking into account the delay in sentencing and the conditions of custody experienced by the appellant. The appeal centred on the principle that the sentence should be proportionate not only to the offence but also in comparison to co-offenders and the impact of any delays in the judicial process.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive, considering the principles of proportionality and the impact of the delay in sentencing. The court examined the factors that influenced the original sentencing decision, including the plea discount, the appellant's culpability, and the comparative sentences of co-offenders. The court also considered the appellant's experience of onerous custody conditions and the effect of the delay on the fairness of the sentencing process. The court needed to assess whether these factors, taken together, rendered the sentence manifestly excessive.

The court held that the delay in sentencing, coupled with the onerous conditions of the appellant's custody, significantly impacted the fairness and proportionality of the sentence. The court found that the delay in sentencing contributed to an increased sentence, which, when combined with the other factors, rendered the sentence manifestly excessive. The court emphasised the importance of proportionality in sentencing and the need to consider the impact of delays and adverse conditions of custody. Consequently, the appeal was upheld, and the sentence was deemed manifestly excessive.

The High Court quashed the sentence imposed by the Supreme Court and remitted the matter for resentencing. The court did not specify a new sentence but directed that the resentencing take into account the principles of proportionality and the impact of the delay and conditions of custody. The case underscores the importance of ensuring that sentences are proportionate and that the impact of delays and adverse conditions of custody are properly considered in the sentencing process.

Orders