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
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.
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 Doan
Sign in free to access the full text
Details
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.