R v Carter - [1999] NSWCCA 376

CITATION: R v Carter [1999] NSWCCA 376

FILE NUMBER(S): CCA 60444/98

HEARING DATE(S): 24 November 1999

JUDGMENT DATE:
24 November 1999

PARTIES :

Kevin Carter (Applicant)
Regina (Respondent)

JUDGMENT OF: Dunford J at 1 & 29; Sperling J at 28

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/71/0109

LOWER COURT JUDICIAL OFFICER: Twigg DCJ

COUNSEL: RJ Button (Applicant)
CK Maxwell QC (Crown/Respondent)

SOLICITORS: TA Murphy (Applicant)
SE O'Connor (Crown/Respondent)

CATCHWORDS: CRIMINAL LAW - sentencing - delay - due to applicant - whether ground for leniency; CRIMINAL LAW - sentencing - parity - sentence of co-offender - material differences.

ACTS CITED: Crimes Act 1900, s 97

CASES CITED:
Lowe v The Queen (1994) 154 CLR 586;
R v Todd [1982] 2 NSWLR 517;
Mill v The Queen (1988) 166 CLR 59;
R v Harrison (1990) 48 A Crim R 197;
R v V (1998) 99 A Crim R 297;
R v King (unreported - CCA - 24 February 1998);
R v Blanco [1999] NSWCCA 121;
R v Fahda [1999] NSWCCA 267;
R v Henry [1999] NSWCCA 111, 46 NSWLR 346.

DECISION: Leave to appeal against sentence granted, appeal dismissed, sentence confirmed.

IN THE COURT OF
CRIMINAL APPEAL
60444/98
DUNFORD J
SPERLING J
WEDNESDAY, 24 NOVEMBER 1999

R v Kevin CARTER
JUDGMENT
1 DUNFORD J: This is an application brought by Kevin Carter for leave to appeal against the sentence of penal servitude for a minimum term of 2 years with an additional term of 2 years, imposed on him by his Honour Judge Twigg QC in the District Court at Sydney on 7 August 1998, following his plea of guilty to a charge of robbery in company contrary to s 97, Crimes Act 1900, which offence carries a maximum penalty of 20 years penal servitude. 2 The facts as found by his Honour were as follows. In the early hours of the morning of 14 February 1996 the victim was assaulted and robbed of $150 cash in a park in Hay, by three young men, one of whom was the applicant. The victim was subsequently admitted to hospital with numerous facial cuts requiring stitches, with extensive facial bruising and with bruising and soreness to his torso. 3 The victim was on his way from Perth to Queensland and was forced to stay in Hay because of mechanical difficulties with his car. He was drinking at the Commercial Hotel there and later accompanied some young men, including one of the co-offenders, Simon Haigh, the applicant and some girls to a house apparently belonging to the applicant in Hay. There they all, including the victim, consumed alcohol and the victim himself indicated that he drank ten Bourbon and Cokes. In due course the victim left the house accompanied by two of the girls. In Hay Park the two girls left him and he was assaulted and robbed. 4 The applicant punched the victim with his closed fist in the face. He hit him…

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 [1999] NSWCCA 376
Case: [1999] NSWCCA 376
Decision Date: 24 November 1999

CaseChat Overview and Summary

The case of R v Carter involved the defendant, Carter, who was convicted of a criminal offence. The appeal was focused on the sentencing aspect, specifically the delay in sentencing proceedings and its impact on the final sentence. The case was heard in the higher court of Australia, where the appeal against the sentence was adjudicated. The primary concern was whether the delay, which was attributed to the applicant, warranted a reduction in the sentence as a form of leniency. Furthermore, the court had to consider whether the sentence imposed was appropriate in light of the sentence given to a co-offender, taking into account any material differences between the cases.

The legal issues at the heart of this appeal revolved around the principles of sentencing in criminal law. The first issue was whether the significant delay in sentencing, caused by the applicant, could be considered a ground for leniency. The second issue pertained to the principle of parity in sentencing, requiring the court to assess whether the sentence imposed on the applicant was commensurate with the sentence of a co-offender, given any material differences between their respective roles in the offence.

In addressing these issues, the court meticulously examined the circumstances of the delay and its impact on the applicant’s sentence. The court acknowledged that while delays in sentencing can sometimes be grounds for leniency, this is not an automatic consequence. The court found that the delay in this instance did not significantly prejudice the applicant’s case and did not warrant a reduction in sentence. Regarding the parity issue, the court considered the material differences between the applicant and the co-offender, such as their respective roles and contributions to the offence. After a thorough analysis, the court concluded that the sentence imposed on the applicant was appropriate, taking into account these differences. The appeal was dismissed, and the original sentence was upheld.

Orders