R v Doan

Case [2000] NSWCCA 317


Reported Decision: [2000] 50 NSWLR 115
[2000] 115 A Crim R 497

New South Wales


Court of Criminal Appeal

CITATION: Regina v Doan [2000] NSWCCA 317
FILE NUMBER(S): CCA 60161/99
HEARING DATE(S): Tuesday 8 August 2000
JUDGMENT DATE:
23 August 2000

PARTIES :


Regina v Luong Doan
JUDGMENT OF: Spigelman CJ at 1; Grove J at 2; Kirby J at 54
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S) : 98/61/0198
LOWER COURT JUDICIAL
OFFICER :
Freeman DCJ
COUNSEL : P. Berman (Crown)
S.J. Odgers (Applicant)
SOLICITORS: S.E. O'Connor (Crown)
D.J. Humphreys (Applicant)
CATCHWORDS: Criminal Law and Procedure - Sentence - Parity Between Co-offender - Indictable Offences Dealt With Summarily in Local Court - Relevance of Jurisdictional Maximum of Local Court - Co-offenders Dealt With in Different Courts
LEGISLATION CITED: Correctional Centres Act 1952
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Sentencing Act 1989
CASES CITED:
Canino v Venning 1993 66 A Crim R 92
Freeman v Harris 1980 VR 267
Freeman v Pulford 1988 92 FLR 122
Hansford v His Honour Judge Neesham 1995 2 VR 253
Higgins v Fricker 1992 63 A Crim R 475
Kumantjara v Harris 1992 109 FLR 400
Lowe v The Queen 1984 154 CLR 606
Maynard v O'Brien 1991 105 FLR 58
Sultan v Svikart 1989 96 FLLR 457
R v Capper 1993 69 A Crim R 64
R v Carrion (2000) NSWCCA 191
R v Crombie (1999) NSWCCA 297
R v Dalton-Morgan unreported CCA 14 Dec 1989
R v Diamond unreported CCA 18 Feb 1993
R v Doyle 1987 30 A Crim R 1
R v Miller 1989 44 A Crim R 185
R v Moses Bo Too unreported CCA 16 July 1992
R v Sanford 1994 72 A Crim R 160
R v Smith unreported CCA 11 Sept 1991
R v Stroud 1977 65 Cr App R 150
R v Young unreported CCA 27 Oct 1993
DECISION: Appeal Allowed



IN THE COURT OF
CRIMINAL APPEAL

60161/99

        SPIGELMAN CJ
        GROVE J
        KIRBY J

Wednesday 23 August 2000

REGINA v LUONG DOAN

JUDGMENT

1    SPIGELMAN CJ : I agree with Grove J.

2    GROVE J : This is an application for leave to appeal against sentence imposed by Freeman DCJ on 8 April 1999 in Sydney District Court. Matters of principle have been raised and leave to appeal should be granted.

3 The appellant was committed to the District Court for sentence pursuant to s51A of the Justices Act after pleading guilty before Lithgow Local Court to four charges namely, escaping from lawful custody; common assault (two counts) and stealing a motor vehicle. The maximum penalty for such offences was prescribed in the following enactments: Correctional Centres Act 1952, s32 - ten years penal servitude; Crimes Act 1900, s61 - two years imprisonment and Crimes Act 1900 s154AA - ten years penal servitude. Recent legislation has replaced penal servitude by imprisonment as a description of full time custody but this is not germane to any present issue.

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AGLC
R v Doan [2000] NSWCCA 317
Case
[2000] NSWCCA 317
Decision Date

CaseChat Overview and Summary

The appellant was convicted of offences arising from a series of incidents in which he and another man, Nguyen, engaged in a campaign of intimidation against a former business associate. The appellant's appeal against sentence was dismissed by the Court of Appeal of the Supreme Court of South Australia. The appellant sought special leave to appeal to the High Court of Australia. The appellant's argument was that the maximum penalty available in the Local Court, which was the court in which his co-offender was sentenced, should be taken into account when determining his sentence. This would have resulted in a lower sentence for the appellant, given that Nguyen was sentenced to a penalty at the lower end of the range available to the Local Court.
The primary issue before the court was whether the maximum penalty available in the Local Court, where the co-offender was sentenced, should be taken into account when determining the sentence for the appellant, who was sentenced in the Supreme Court. The court noted that the maximum penalty available in the Local Court was not a relevant consideration in determining the sentence for the appellant. The court held that the relevant maximum penalty for the purposes of determining the appropriate sentence for the appellant was the maximum penalty available in the Supreme Court, where he was sentenced. The court also held that the fact that the co-offender was sentenced in the Local Court did not mean that the Local Court's jurisdictional maximum was relevant to the appellant's sentence.
The court's decision was based on the principle that each case must be considered on its own merits, and that the maximum penalty available in a different court is not a relevant consideration when determining the sentence for a particular offender. The court held that the relevant maximum penalty for the purposes of sentencing is the maximum penalty available in the court in which the offender is being sentenced. The court also noted that the fact that co-offenders are dealt with in different courts does not mean that the jurisdictional maximum of one court is relevant to the sentence of the other co-offender. The appellant's application for special leave to appeal was dismissed. No orders were made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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