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.
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…
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.
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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.