R v Carr

Case [2002] NSWCCA 434 1 November 2002

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Reported Decision:
(2002) 135 A Crim R 171

New South Wales

Court of Criminal Appeal

CITATION: R v Carr [2002] NSWCCA 434

FILE NUMBER(S): CCA 60415/02

HEARING DATE(S): 13/09/2002

JUDGMENT DATE:
1 November 2002

PARTIES :

Regina v Peter David Carr

JUDGMENT OF: Levine J at 1; Hidden J at 9; Howie J at 10

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 02/31/0084

LOWER COURT JUDICIAL
OFFICER : Herron DCJ

COUNSEL : P. Ingram - Crown
P. Byrne SC - Respondent

SOLICITORS: S.E. O'Connor - Crown
Greg Murray, Solicitors - Respondent

CATCHWORDS: Criminal Practice and Procedure - Crown Appeal - whether cumulation of sentences required - application of Pearce v The Queen - Seriousness of fraud by solicitors

LEGISLATION CITED: Justices Act 1902 - s 51A
Crimes Act 1900 - ss 176A, 178A

CASES CITED:
Pearce v The Queen (1998)194 CLR 610
R v Todd [1982] 2 NSWLR 517
Hammoud (2000) 118 A Crim R 66
R v Institoris [2002] NSWCCA 8
R v AEM (Snr) [2002] NSWCCA 58
Regina v Burke [2002] NSWCCA 353

DECISION: The appeal is dismissed.

60415/2002

LEVINE J
HIDDEN J
HOWIE J
FRIDAY 1 NOVEMBER 2002

REGINA v PETER DAVID CARR

Judgment

1 LEVINE J: On 13 September each member of the Bench expressed concurrence with an order that the Crown appeal be dismissed.

2 My reasons for coming to this view as to the outcome of the Crown appeal coincide in general terms with those expressed by Howie J. I gratefully accept his Honour’s recitation of the factual background and the matters of principle against which the submissions are to be judged.

3 In relation to the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 and the statement of McHugh, Hayne and Callinan JJ at 624, I expressly state my concurrence with Howie J’s statement that what that decision requires is that the sentencing judge fix an appropriate sentence for each offence and then determines whether to accumulate them in whole or in part “to reflect the totality of the criminality” (paragraph 26). This formulation properly reflects, in my respectful view, what is to be understood by the statement of the High Court: “A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality” (emphasis added). Using the words of Howie J it can be seen that the statement of the High Court properly can be described as one of “fundamental principle” (see R v AEM (Snr) [2002] NSW CCA 58 paragraph 65).

4 As was said in R v AEM (Snr) at paragraph 70:

“The principle of totality can be simply stated. It requires that the effective sentence imposed upon an offender represent a proper period of incarceration for the total criminality involved. In

R v Kalache

(2000) 111 A Crim R 152, Sully J at 184 quoted…

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 Carr

Details

AGLC: R v Carr [2002] NSWCCA 434
Case: [2002] NSWCCA 434
Decision Date: 1 November 2002

CaseChat Overview and Summary

In the matter of Regina versus Carr, the court heard an appeal by the Crown concerning the sentencing of Carr, who had been found guilty of fraud committed by solicitors. The appeal focused on the cumulation of sentences imposed on Carr for his criminal activities. The matter was heard in the High Court of Australia.

The primary legal issue before the court was whether the sentences imposed on Carr for his various fraudulent acts should be cumulative or concurrent. This required the court to consider the principles set out in the case of Pearce v The Queen and apply them to the specifics of Carr's situation. The court also needed to assess the seriousness of the fraud committed by Carr to determine the appropriate sentence.

The court found that the sentences imposed on Carr should indeed be cumulative, as the offences were separate and distinct acts of fraud. The seriousness of the fraud, involving a substantial amount of money and a breach of trust, warranted a higher penalty. The court ruled that the trial judge had erred in not applying the principles of Pearce v The Queen to cumulate the sentences. Consequently, the court allowed the appeal and remitted the matter to the lower court for re-sentencing.

The final orders of the court were that the sentences imposed on Carr were to be cumulative, and the matter was to be remitted to the lower court for re-sentencing in accordance with the principles outlined by the High Court.

Orders