CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Sentence
Assault occasioning actual bodily harm and affray
Offences arising out of same events
Election by Director of Public Prosecutions to remove from Local Court
Inhibition on so doing in respect of one charge by reason of plea and tender of facts in Local Court
Error in perception that sentence restricted to jurisdictional limit of Local Court on elected charge
No requirement for restraint to Local Court level of available maximum to avoid double punishment
Significantly high level of objective criminality

LEGISLATION CITED:
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Criminal Appeal Act 1912
Criminal Procedure Act 1986

CATEGORY:
Principal judgment

CASES CITED:
Pearce v The Queen (1998) 194 CLR 610
R v JW [2010] NSWCCA 49
R v Thomson & anor (2000) 49 NSWLR 383

TEXTS CITED:

DECISION:
Crown appeal allowed in part.
Respondent resentenced.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2009/8956
ALLSOP P
GROVE J
HISLOP J
25 May 2010

R v James Joseph ELPHICK

Judgment

ALLSOP P: I agree with Grove J.
GROVE J On 5 August 2009 the respondent appeared before Conlon DCJ (the Judge) at Wollongong District Court for sentence following his plea of guilty in the Local Court to a charge of affray. There was at that time placed before his Honour a certificate pursuant to s 166 of the Criminal Procedure Act 1986 specifying that the respondent “has been charged with backup offences” described as respectively, assault occasioning actual bodily harm and common assault. The copy certificate with the appeal papers is unsigned and bears date 6 May 2009. The offence of assault occasioning actual bodily harm does not fit the description of a backup offence to affray as provided by s 165 of that Act but it does fit the definition of a related offence.
For each of the offence of affray and the related offence of assault occasioning actual bodily harm (the current offences) the Judge sentenced the respondent to imprisonment consisting of a non-parole period of 18 months to date from 11 February 2009 and to expire on 10 August 2010 and an additional (balance) term of 6 months to expire on 10 February 2011. The Judge dismissed the backup charge of common assault.
To appreciate the practical effect of these sentences, it is necessary to examine some other offences and penalties pertaining to the respondent. The current offences were committed on 11 February…

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 Elphick

Details

AGLC: R v Elphick [2010] NSWCCA 112
Case: [2010] NSWCCA 112
Decision Date: 25 May 2010

CaseChat Overview and Summary

In this matter, the respondent Elphick faced charges of assault occasioning actual bodily harm and affray, which arose from the same series of events. The case was heard in the District Court of New South Wales. The Director of Public Prosecutions initially brought the charges in the Local Court, but later elected to remove them to the District Court, citing a need for a more severe penalty. The respondent had entered a guilty plea in the Local Court to the charge of assault occasioning actual bodily harm, and had also tendered facts for the second charge of affray. The court had to determine whether the Director of Public Prosecutions was entitled to transfer the charges to the District Court, given the plea and tendered facts already before the Local Court.

The primary legal issue was whether the Director of Public Prosecutions could elect to remove the charges from the Local Court to the District Court, considering that the respondent had already pleaded guilty to one charge and tendered facts for the other. The court also had to consider if the sentence imposed should be restricted by the jurisdictional limits of the Local Court, or if it could exceed these limits to reflect the severity of the crimes committed. A significant consideration was whether imposing a sentence that exceeded the Local Court's jurisdictional limit would constitute double punishment, or if it was permissible given the high level of objective criminality involved.

The court determined that the Director of Public Prosecutions was entitled to transfer the charges to the District Court, despite the plea and tendered facts in the Local Court, because the objective criminality was so significant that a higher penalty was warranted. The court also found that there was no requirement to limit the sentence to the maximum penalty available under the Local Court's jurisdiction to avoid double punishment. The District Court imposed a sentence that reflected the gravity of the offences committed. The court concluded that the substantial level of criminality justified a sentence that went beyond the maximum penalty that could be imposed by the Local Court.

The court's final orders included a sentence for the respondent Elphick that was higher than the maximum penalty available under the Local Court's jurisdiction. The court also ruled that the Director of Public Prosecutions was not prevented from transferring the charges to the District Court, notwithstanding the plea and tendered facts in the Local Court. The decision emphasised the importance of considering the objective criminality in determining an appropriate sentence, even if it exceeded the jurisdictional limits of the court where the charges were initially heard.

Orders