R v Durocher-Yvon

Case [2003] NSWCCA 299


Reported Decision:

58 NSWLR 581
142 A Crim R 489

New South Wales


Court of Criminal Appeal

CITATION: R v Durocher-Yvon [2003] NSWCCA 299 revised - 21/10/2003
HEARING DATE(S): 14/10/2003
JUDGMENT DATE:
20 October 2003
JUDGMENT OF: Sheller JA at 1; Sully J at 2; Howie J at 3
DECISION: Application for leave to appeal be granted but the appeal is dismissed.
CATCHWORDS: Criminal Law and Procedure - Appeal and new trial - Evidence of applicant entering protection after sentence imposed - whether the evidence should be received - relevance of protective custody to sentencing.
LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
CASES CITED: R v Fordham (1997) 98 A Crim R 359
R v Patison [2003] NSWCCA 171
R v Ingram [2002] NSWCCA 398
R v MacDonnell [2002] NSWCCA 34
R v Wahabzadah [2001] NSWCCA 253
R v S [2000] NSWCCA 13
R v GP [2001] NSWCCA 231
R v Totten [2003] NSWCCA 207

PARTIES :

Regina v Roland Steven Durocher-Yvon
FILE NUMBER(S): CCA 60066/02
COUNSEL: D. Arnott - Crown
A. Francis - Applicant
SOLICITORS: C.K. Smith - Crown
Ross Hill & Associates - Applicant
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 01/21/0231
LOWER COURT
JUDICIAL OFFICER :
Nield DCJ


                          60066/02

                          SHELLER JA
                          SULLY J
                          HOWIE J

                          MONDAY 20 OCTOBER 2003
Regina v Roland Steven DUROCHER-YVON
Judgment

1 SHELLER JA: I agree with Howie J.

2 SULLY J: I agree with Howie J.

3 HOWIE J: This is an application for leave to appeal against the sentence imposed on the applicant by his Honour Judge Nield in the District Court on 1 February 2002. The applicant had pleaded guilty before a magistrate to a number of offences of dishonesty and was committed for sentence. In the District Court he pleaded guilty to 21 offences and asked the sentencing judge to take into account a further 180 offences on a Form 1 under the provisions of the Crimes (Sentencing Procedure) Act. As a result Judge Nield sentenced the applicant to a total sentence of imprisonment for 7 years 4 months and 2 weeks and specified a non-parole period of 4 years 7 months and 2 weeks. The sentences were to commence on 2 September 2001 and the non-parole period is to expire on 15 April 2006.

4 There is one ground of appeal relied upon being to the effect that this Court should receive as fresh evidence the fact that from 1 February 2002, the date upon which he was sentenced by Judge Nield, the applicant has been required to serve his sentence in protective custody. There is no criticism of the length of the sentences imposed by Judge Nield, the facts as found by his Honour or the method by which the sentences were calculated.

5 In order to determine the ground of appeal relied upon, it is unnecessary to detail the offences for which Judge Nield sentenced the applicant or the way in which the sentences were structured. It is sufficient for present purposes to indicate that…

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AGLC
R v Durocher-Yvon [2003] NSWCCA 299
Case
[2003] NSWCCA 299
Decision Date

CaseChat Overview and Summary

The case of R v Durocher-Yvon involved the appellant, Durocher-Yvon, who was convicted of various criminal offences and subsequently sentenced. The appellant appealed against the sentence imposed, arguing that certain evidence should not have been considered by the sentencing court. Specifically, the appellant contended that evidence of him entering a protection order after the sentence was imposed was irrelevant and prejudicial, as it related to his placement in protective custody. The appeal was heard by the court, which was tasked with determining whether the evidence of the appellant's entry into protection should have been received and whether his placement in protective custody was relevant to the sentencing decision.

The legal issues before the court were whether the evidence of the appellant's entry into protection was admissible and, if so, whether it was relevant to the sentencing decision. The court had to consider the principles of relevance and prejudicial effect in determining whether the evidence should be excluded. Additionally, the court needed to assess whether the appellant's placement in protective custody was a factor that should have been taken into account when imposing the sentence.

The court held that the evidence of the appellant's entry into protection was not relevant to the sentencing decision and should not have been considered by the sentencing court. The court found that the evidence was prejudicial and did not assist in determining an appropriate sentence. Furthermore, the court determined that the appellant's placement in protective custody was not a factor that should have influenced the sentence, as it was a consequence of the sentence rather than a mitigating or aggravating factor. As a result, the court concluded that the sentence imposed was affected by the improper consideration of the evidence and ordered a new sentencing hearing to be conducted without the inclusion of the prejudicial evidence.

The final orders of the court included a quashing of the original sentence and a direction for a new sentencing hearing to be conducted in accordance with the court's determination. The court emphasised the importance of ensuring that sentencing decisions are based on relevant and admissible evidence, free from prejudicial factors that may influence the outcome.

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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