Quinlan v The Queen - [2021] NSWCCA 21

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Quinlan v R [2021] NSWCCA 21
Hearing dates: 24 February 2021
Date of orders: 08 March 2021
Decision date: 08 March 2021
Before: Leeming JA at [1]
Harrison J at [2]
Adamson J at [47]
Decision:
(1)    Grant leave to appeal against sentence.
(2)    Allow the appeal.
(3)    Set aside the aggregate sentence imposed upon the applicant by her Honour Syme DCJ on 19 October 2018.
(4)    In lieu thereof:
(a)    impose an aggregate sentence of 11 years and 6 months imprisonment commencing on 15 December 2014 and expiring on 14 June 2026 with a non-parole period of 6 years and 9 months expiring on 14 September 2021;
(b) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 indicate to the applicant and record that an aggregate sentence is imposed and that the sentences that would have been imposed for each offence under s 97(2) of the Crimes Act 1900 are those specified in the Schedule hereto.
(5) In accordance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), it is noted that the offence for which the applicant is sentenced is one to which the statute applies, with the possibility that he will be detained in custody after the expiry of the sentence in accordance with that statute.
Schedule of Indicative Sentences
Count 1 – 8 years and 6 months imprisonment
Count 2 – 8 years imprisonment
Count 3 – 8 years 6 months imprisonment

Catchwords:
CRIMINAL LAW – appeal – appeal against sentence – robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900 – whether sentencing judge erred in approach to fact finding –whether sentencing judge made findings inconsistent with agreed facts – where Crown conceded error – appeal allowed – applicant sentenced afresh

Legislation Cited:
Crimes Act 1900
Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Nabalarua v R [2020] NSWCCA 68

Category: Principal judgment
Parties: Kalaveti Quinlan (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Boulten SC (Applicant)
M Millward (Respondent)
Solicitors:
Kings Law Group (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2014/368787
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

19 October 2018

Before:

Syme DCJ

File Number(s):

2014/00368787

Judgment

LEEMING JA: I agree with Harrison J.
HARRISON J: Kalaveti Quinlan seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed upon him on 19 October 2018 by Judge Syme in the District Court following a plea of guilty to three counts of robbery whilst armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900. At the time of sentencing, two further offences of being carried in a conveyance without the consent of the owner under s 154A(1)(b) were separately included on Forms 1 attaching to the…

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 Quinlan v The Queen

Details

AGLC: Quinlan v The Queen [2021] NSWCCA 21
Case: [2021] NSWCCA 21
Decision Date: 08 March 2021

CaseChat Overview and Summary

In the case of Quinlan v The Queen, the appellant challenged the sentence imposed upon him by the sentencing judge. The appellant was convicted of robbery while armed with a dangerous weapon, an offence contrary to section 97(2) of the Crimes Act 1900. The primary issue before the court was whether the sentencing judge had erred in his approach to fact-finding and whether the judge had made findings that were inconsistent with the agreed facts of the case. The Crown conceded that an error had occurred during the sentencing process.

The court examined the transcript of the sentencing hearing and noted that the sentencing judge had made findings that were not aligned with the agreed facts. The judge had found that the appellant had acted in self-defence, which was not a matter that had been agreed upon by the parties. The court held that the sentencing judge had erred in his approach to fact-finding and that this error had the potential to affect the overall sentence imposed on the appellant. As a result, the appeal was allowed, and the appellant was to be sentenced afresh.

The court ordered that the appellant be re-sentenced by a different sentencing judge, taking into account the agreed facts and without making any findings on matters not agreed upon by the parties. The court emphasised the importance of ensuring that sentencing judges adhere to the agreed facts and avoid making findings that could potentially influence the outcome of the sentencing process. The appellant's conviction was upheld, but the sentence was quashed and the matter was remitted to the sentencing court for re-sentencing.

Orders