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R v AB (No 2)

R v AB (No 2)

Case [2011] NSWCCA 256 2 December 2011

Appeal

Aggregate Sentencing

Misapprehension of Law

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v AB (No. 2) [2011] NSWCCA 256
Hearing dates: On written submissions
Decision date: 02 December 2011
Before: Bathurst CJ at 1
Hoeben J at 2
Johnson J at 3
Decision:
1. Pursuant to Rule 50C Criminal Appeal Rules , orders made by the Court on 14 October 2011 are set aside.
2. Crown appeal allowed.
3. Sentences imposed in the District Court on 9 March 2011 with respect to the first, second, third and fourth counts are quashed.
4. On the first count, the Respondent is sentenced to a fixed term of imprisonment of three months commencing on 28 May 2010 and expiring on 27 August 2010.
5. On the second count, the Respondent is sentenced to a fixed term of imprisonment of 18 months commencing on 28 June 2010 and expiring on 27 December 2011.
6. On the third count, the Respondent is sentenced to a fixed term of imprisonment of two years commencing on 28 November 2011 and expiring on 27 November 2013.
7. On the fourth count, the Respondent is sentenced to imprisonment for three years commencing on 28 October 2013 and expiring on 27 October 2016, with that sentence comprising a non-parole period of one year and four months commencing on 28 October 2013 and expiring on 27 February 2015 and a balance of term of one year and eight months commencing on 28 February 2015 and expiring on 27 October 2016.
8. The sentence imposed in the District Court on 9 March 2011 for the offence of driving whilst disqualified, pursuant to a certificate under s.166 Criminal Procedure Act 1986 is confirmed.
9. The orders for disqualification made in the District Court on 9 March 2011 are confirmed.
10. Under s.50 Crimes (Sentencing Procedure) Act 1999, it is directed that the Respondent be released on parole on 28 February 2015.

Catchwords: CRIMINAL LAW - Crown appeal - appeal allowed and Respondent resentenced - aggregate sentencing provisions utilised - aggregate sentencing provisions not available given timing of pleas of guilty - further slip in calculation of sentences - application under Rule 50C Criminal Appeal Rules - misapprehension of law materially affecting appeal judgment - order made under Rule 50C - Respondent resentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment Act 2010
Criminal Procedure Act 1986
Criminal Appeal Rules
Cases Cited:
R v AB [2011] NSWCCA 229
R v Green and Quinn [2011] NSWCCA 71
R v Burrell [2007] NSWCCA 79; 175 A Crim R 21
Alramadan v Director of Public Prosecutions (NSW) No. 2) [2008] NSWCCA 69
Kauwenberghs v R (Cth) [2009] NSWCCA 201
Erceg v District Court of New South Wales [2003] NSWCA 379; 143 A Crim R 455
R v Finnie (No. 2) [2004] NSWCCA 150
Category: Consequential orders
Parties: Regina (Appellant)
AB (Respondent)
Representation: Ms S Dowling (Appellant)
Mr G Corr (Respondent)
Solicitor for Public Prosecutions (Appellant)
M Doughty (Respondent)

File Number(s): 2009/55060

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 R v AB (No 2)

Details

AGLC: R v AB (No 2) [2011] NSWCCA 256
Case: [2011] NSWCCA 256
Decision Date: 02 December 2011

CaseChat Overview and Summary

In the case of R v AB (No 2), the respondent appealed against a conviction and sentence. The court was asked to consider whether the appeal should be allowed based on a misapprehension of law that materially affected the original appeal judgment. The appeal concerned a Crown appeal from the respondent's conviction and sentence. The primary legal issue was whether the appeal court had erred in its application of the aggregate sentencing provisions and whether there was a misapprehension of law that materially affected the appeal judgment. The appeal court found that the aggregate sentencing provisions were not available due to the timing of the respondent's pleas of guilty. Additionally, the court identified a slip in the calculation of the sentences that had not been rectified. The appeal court determined that there was indeed a misapprehension of law that materially affected the appeal judgment. Consequently, the appeal was allowed, and the matter was remitted to the original sentencing court for resentencing. The appeal court's decision was made under Rule 50C of the Criminal Appeal Rules. The court ordered that the respondent be resentenced by the original sentencing court, taking into account the correct application of the law and the accurate calculation of the sentences.

Orders