R v Egan

Case [2013] NSWCCA 196 23 August 2013

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Court of Criminal Appeal

New South Wales

Case Title: R v Egan

Medium Neutral Citation: [2013] NSWCCA 196

Hearing Date(s): 6 August 2013

Decision Date: 23 August 2013

Before: Leeming JA at [1]
R A Hulme J at [2]
Button J at [103]

Decision:
Crown appeal allowed.
Sentences imposed in the District Court quashed.
Assault occasioning actual bodily harm (count 3): sentenced to imprisonment for 10 months with no non-parole period. The sentence is to date from 5 January 2013 and expire on 4 November 2013.
Assault occasioning actual bodily harm (count 5A): sentenced to imprisonment for 1 year 9 months with no non-parole period. The sentence is to date from 5 January 2013 and expire on 4 October 2014.
Sexual intercourse without consent (count 2): sentenced to imprisonment comprising a non-parole period of 2 years and a balance of the term of the sentence of 8 months. The sentence is to date from 5 September 2013. The non-parole period expires on 4 September 2015 and the total term expires on 4 May 2016.
Do act with intent to pervert the course of justice (count 6): sentenced to imprisonment comprising a non-parole period of 1 year and a balance of the term of the sentence of 1 year and 6 months. The sentence is to date from 5 September 2014. The respondent is to be released on parole upon the expiration of the non-parole period on 4 September 2015. The total term of the sentence will expire on 4 March 2017.

Catchwords: CRIMINAL LAW - Crown appeal - offences of assault, sexual assault and pervert course of justice - suspended sentence of 22 months imprisonment - sentence manifestly inadequate - relevance of comments preliminary to remarks on sentence - whether judge decided to suspend the sentences before determining their length - principles applicable where sentencing for multiple offences - totality
CRIMINAL LAW - Crown appeal - errors in assessing impact of mental condition and objective seriousness of offences - error in assessing discount for utilitarian value of pleas of guilty - pleas entered after date allocated for commencement of trial - whether fact that delay partially explicable by charge negotiation warranted deviation from usual discount for plea of very limited utilitarian value

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited: Burnard v R [2009] NSWCCA 5; 193 A Crim R 23
Douar v R [2005] NSWCCA 455; 159 A Crim R 154
Ghobrial v R [2012] NSWCCA 221
Green v R; Quinn v R [2011] HCA 49; 244 CLR 462
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Dib [2003] NSWCCA 117
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v Pangallo (1991) 56 A Crim R 441
R v Ryan [2006] NSWCCA 394; 167 A Crim R 241
R v Thomson; R v…

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 Egan

Details

AGLC: R v Egan [2013] NSWCCA 196
Case: [2013] NSWCCA 196
Decision Date: 23 August 2013

CaseChat Overview and Summary

The case of R v Egan involved the appellant, who was convicted of assault, sexual assault, and perverting the course of justice. The appellant was sentenced to a total of 22 months imprisonment, suspended for a period of two years. The Crown appealed the sentence, arguing that it was manifestly inadequate and that the trial judge had made errors in assessing the impact of the appellant's mental condition, the objective seriousness of the offences, and the discount for the utilitarian value of the appellant's guilty pleas. The appeal was heard in the Court of Criminal Appeal.

The central legal issues were whether the sentence was manifestly inadequate and whether the trial judge had erred in assessing the various factors that should have been taken into account when determining the sentence. The court had to consider the principles applicable to sentencing for multiple offences and the concept of totality. The court also had to determine whether the fact that the appellant's pleas of guilty were entered after the date allocated for the commencement of the trial, and that the delay was partially explicable by charge negotiation, warranted a deviation from the usual discount for the utilitarian value of the pleas.

The Court of Criminal Appeal found that the sentence was manifestly inadequate, and that the trial judge had erred in assessing the impact of the appellant's mental condition, the objective seriousness of the offences, and the discount for the utilitarian value of the pleas. The court held that the trial judge had decided to suspend the sentences before determining their length, which was impermissible. The court also held that the trial judge had not given sufficient weight to the objective seriousness of the offences and had erred in assessing the discount for the utilitarian value of the pleas. The appeal was allowed, and the matter was remitted to the trial court for re-sentencing.

The Court of Criminal Appeal ordered that the matter be remitted to the trial court for re-sentencing, with directions to take into account the errors identified by the Court of Criminal Appeal. The Court of Criminal Appeal also noted that the appellant's mental condition was a mitigating factor, but that it did not warrant a significant discount from the appropriate sentence. The Court of Criminal Appeal held that the trial court should have given greater weight to the objective seriousness of the offences and that the discount for the utilitarian value of the pleas should have been limited.

Orders