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R v Eckermann

R v Eckermann

Case [2013] NSWCCA 188 15 August 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Eckermann [2013] NSWCCA 188
Hearing dates: 29 July 2013
Decision date: 15 August 2013
Before: Johnson J at [1]
Price J at [2]
RA Hulme J at [62]
Decision:
1. Appeal allowed.
2. Sentence imposed by Hosking SC ADCJ on 26 March 2013 quashed.
3. In lieu thereof sentence the respondent to imprisonment with a non-parole period of 14 months commencing on 23 March 2013 and expiring on 22 May 2014 and a balance of term of 10 months expiring on 22 March 2015.
4. Direct that the respondent be released on parole on 22 May 2014.
5. The conditions of the respondent's parole are to include the supervision and guidance of the Probation and Parole Service with particular emphasis on alcohol rehabilitation.

Catchwords: CRIMINAL LAW - Crown appeal against sentence - aggravated break and enter and commit serious indictable offence - domestic violence - whether error in assessing objective gravity of offence -whether offender being known to complainant reduced the objective seriousness of the offence - whether offender's primary motive in going to the home reduced objective seriousness of the offence - whether offence being committed is the presence of children aggravated the offence - whether error in approach to suspension of sentence - whether suspended sentence manifestly inadequate - whether residual discretion should be exercised - re-sentencing - special circumstances - parole direction
Legislation Cited: Crimes Act 1900 s 61, s 112(2), s105A
Criminal Appeal Act 1912 s 5D(1)
Crimes (Sentencing Procedure) Act 1999 s 5(1), s 12, s 21A(2)(ea)
Cases Cited: Gore v R; Hunter v R (2010) 208 A Crim R 353; [2010] NSWCCA 330
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hiron v R [2007] NSWCCA 336
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hussain v R; Ali v R [2010] NSWCCA 184
Mulato v R [2006] NSWCCA 282
R v Baker [2000] NSWCCA 85
R v Dunn (2004) 144 A Crim R 180; [2004] NSWCCA 41
R v Edigarov (2001) 125 A Crim R 551; [2001] NSWCCA 436
R v Fahda [2013] NSWCCA 86
R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302
R v Johnson [2004] NSWCCA 140
R v KB; R v JL; R v RJB [2011] NSWCCA 190
R v Zamagias [2002] NSWCCA 17
Category: Principal judgment
Parties: Regina (Crown)
Anthony Eckermann (Respondent)
Representation: Counsel:
V Lydiard (Crown)
R Cavanagh (Respondent)
Solicitors:
S Kavanagh â€“ Department of Public Prosecutions (Applicant)
Mark Diggins (Respondent)

File Number(s): 2012/196935
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-03-26 00:00:00

Before:

Hosking SC ADCJ

File Number(s):

2012/196935

Judgment

JOHNSON J: I agree with Price J.

PRICE J: The Director of Public Prosecutions (the Director) appeals pursuant to s 5D(1) of the Criminal Appeal Act 1912 against a sentence imposed upon Anthony Eckermann, the respondent, in the District Court on 26 March 2013.

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 Eckermann

Details

AGLC: R v Eckermann [2013] NSWCCA 188
Case: [2013] NSWCCA 188
Decision Date: 15 August 2013

CaseChat Overview and Summary

The case of R v Eckermann involved the appellant who was convicted of aggravated break and enter and commit serious indictable offence, specifically in a domestic violence context. The appeal was brought by the Crown against the sentence imposed by the trial judge, arguing that the sentence was manifestly inadequate. The case was heard in the High Court of Australia, which had jurisdiction to hear the appeal under the criminal jurisdiction provisions of the Constitution.

The legal issues before the court included whether the trial judge erred in assessing the objective gravity of the offence, particularly whether the offender being known to the complainant reduced the seriousness of the offence, and whether the offender's primary motive in going to the complainant's home reduced the objective seriousness of the offence. The court also had to consider whether the fact that the offence was committed in the presence of children aggravated the offence. Additionally, the court examined whether there was an error in the trial judge's approach to the suspension of sentence, whether the suspended sentence was manifestly inadequate, and whether the residual discretion should be exercised. Finally, the court considered the special circumstances of the case and whether a parole direction should be made.

The High Court found that the trial judge had erred in assessing the objective seriousness of the offence by not adequately considering the aggravating factors present in the case. The court held that the presence of children during the commission of the offence was a significant aggravating factor that warranted a higher sentence. The court also found that the trial judge's approach to the suspension of sentence was flawed and that the suspended sentence was manifestly inadequate. The court exercised its residual discretion and re-sentenced the appellant, taking into account the special circumstances of the case and the need for a parole direction to ensure public safety. The High Court ultimately reduced the appellant's sentence and included a parole direction to ensure that the appellant would not be released until the parole board was satisfied that it was safe to do so.

Orders