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R v Carter

R v Carter

Case [2001] NSWCCA 245 27 June 2001

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CITATION: Regina v Carter [2001] NSWCCA 245

FILE NUMBER(S): CCA 60693/00

HEARING DATE(S): 27/06/01

JUDGMENT DATE:
27 June 2001

PARTIES :

Regina v Kristen Carter

JUDGMENT OF: Barr J at 24; Howie J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/11/06437

LOWER COURT JUDICIAL
OFFICER : Nash ADCJ

COUNSEL : M.C. Grogan - Crown
C.B. Craigie - Applicant

SOLICITORS: S.E. O'Connor - Crown
D.J. Humphreys - Applicant

CATCHWORDS: Sentence - discount for plea of guilty - totality - application of Pearce v The Queen

LEGISLATION CITED: Crimes Act 1900 - s 112
Justices Act 1902 - s 51A

CASES CITED:
R v Thompson and Houlton (2000) 49 NSWLR 383
Pearce v The Queen (1998) 194 CLR 610
Veen v The Queen (No. 2) (1988) 164 CLR 465

DECISION: See para 23

IN THE COURT OF
CRIMINAL APPEAL

60693/00

BARR J
HOWIE J
WEDNESDAY 27 June 2001

REGINA v KRISTEN CARTER

JUDGMENT

1 HOWIE J: The applicant seeks leave to appeal against the sentences imposed upon him by Acting Judge Nash at the District Court in Sydney on 20 October 2000 following his plea of guilty to an indictment containing two counts of break enter and steal contrary to s 112 of the Crimes Act. The applicant had previously pleaded guilty to those matters before a magistrate and was committed for sentence under s 51A of the Justices Act. However, owing to a defect in the s 51A document, an indictment was presented to the District Court and the applicant pleaded guilty on arraignment. The offences each carried a maximum penalty of 14 years imprisonment.

2 In relation to the second count on the indictment His Honour sentenced the applicant to a sentence of 5 years imprisonment with a non-parole period of 3 years dating from 20 May 2000. The non-parole period is to expire on 19 May 2003. With respect to the first count His Honour sentenced the applicant to a fixed term of 2 years and 7 months imprisonment that was also to date from 20 May 2000.

3 The first offence occurred on the afternoon of 5 May 2000 at residential premises in Glebe. The applicant succeeded in jemmying the grill away from a front ground floor window and opened the unlocked window. The applicant then proceeded to remove various items from the house, including a video player, an answering machine, numerous music CDs and a gold chain. He made good his escape through the same window.

4 The second offence occurred on 20 May 2000 in Paddington. The applicant and a co-offender entered a dwelling house by breaking the glass of the rear door and making use of a key that was hanging by the door. Both side glass doors were smashed and the back balcony rail was broken. The front bedroom was ransacked and drawers in various rooms opened. The owner of the premises, when returning home, happened upon the pair while they were still engaged in the offence.…

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 Carter

Details

AGLC: R v Carter [2001] NSWCCA 245
Case: [2001] NSWCCA 245
Decision Date: 27 June 2001

CaseChat Overview and Summary

In the matter of R v Carter, the appellant was convicted of multiple counts of assault and robbery, and was sentenced to a term of imprisonment. The primary issue before the court was whether the trial judge had erred in failing to provide an appropriate discount for the appellant's plea of guilty. The case proceeded to the Court of Appeal, which was tasked with determining whether the sentence imposed was manifestly excessive or inadequate in light of the totality principle.

The court considered whether the trial judge had erred in failing to sufficiently consider the principle of totality in sentencing. This principle requires that the overall sentence takes into account any discount for a plea of guilty. The court also examined whether the trial judge had applied the correct principles in determining the appropriate discount for the appellant's plea of guilty. The court referred to the decision in Pearce v The Queen to determine the appropriate approach to sentencing in light of a guilty plea.

The court found that the trial judge had not properly applied the principle of totality in sentencing the appellant. The court noted that the sentence imposed did not reflect an adequate discount for the appellant's plea of guilty. The court held that the trial judge should have applied the principles set out in Pearce v The Queen and given greater weight to the discount for the plea of guilty. The court remitted the matter to the trial judge for resentencing. The court emphasised the importance of properly applying the principle of totality in sentencing, and the need for trial judges to adequately consider the discount for a guilty plea.

Orders