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R v English

R v English

Case [2000] NSWCCA 245 16 June 2000

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NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v English [2000] NSWCCA 245 revised - 11/07/2000

FILE NUMBER(S):
60453/99

HEARING DATE(S): 16 June 2000

JUDGMENT DATE: 16/06/2000

PARTIES:
Regina v Jason Wayne English

JUDGMENT OF: Giles JA Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/31/0099

LOWER COURT JUDICIAL OFFICER: Armitage DCJ

COUNSEL:
Crown - M Grogan
Applicant in person

SOLICITORS:
S E O'Connor - Crown
Applicant in person

CATCHWORDS:
SENTENCING - offender sentenced on basis he only stood by - co-offender later sentenced on basis co-offender was the one who only stood by - could not be justifiable sense of grievance - Postiglione v The Queen (1997) 189 CLR 295 referred to - pre-sentence custody taken into account but sentence not backdated - no statement of reasons for not backdating - practice to backdate or state why not emphasised - R v McHugh (1985) 1 NSWLR 588, R v Deeble 19 September 1991, unreported - sentence nonetheless appropriate - minor adjustment made.

LEGISLATION CITED:

DECISION:
(1) Sentence is quashed. (2) The applicant is sentenced in substitution to a term of imprisonment of two years less seven days to commence on 26 July 1999 and to expire on 18 July 2000. (3) The Court sets a non parole period of eighteen months less seven days and the earliest date upon which the applicant will become eligible to be released on parole is 18 January 2001. (4) The applicant is to be released on parole at the end of the non-parole period.

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 60453/99
DC 99/31/0099
GILES JA
ADAMS AJA
Friday 16 June 2000

REGINA v Jason Wayne ENGLISH

JUDGMENT

1 GILES JA: The applicant applies for leave to appeal against the sentence of a minimum term of eighteen months penal servitude with an additional term of six months for the offence of robbery in company under s 97 of the Crimes Act, 1900. The sentence was imposed by Judge Armitage on 26 July 1999 following a plea of guilty to the offence.

2 The applicant and Warren Cary Ninness pleaded guilty to the charge that on 9 January 1999 at Tamworth in New South Wales being in company with each other they robbed Indrani Swarnalatha Stevens of a sum of money. Natasha Lee Watt pleaded guilty to a charge of aiding, abetting and counselling Mr Ninness and the applicant in the commission of that offence.

3 The sentencing took place over a number of days. Given the basis of the application, only a short description of what occurred is necessary.

4 On 19 July 1999 the judge was told that the applicant wished to proceed to a determination of his sentence, but that the other two offenders wished to have pre-sentence reports which would probably not be available that day. After some discussion his Honour decided to go "as far as we can". The Crown tendered and there were admitted against each of the…

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 English

Details

AGLC: R v English [2000] NSWCCA 245
Case: [2000] NSWCCA 245
Decision Date: 16 June 2000

CaseChat Overview and Summary

The case of R v English involved a sentencing dispute where the offender argued that his sentence was unjust because it was based on his passive role, whereas his co-offender received a sentence based on the co-offender's active participation. The High Court of Australia was tasked with determining whether the disparity in sentencing was justifiable. The legal issues before the court centered on the principles of sentencing fairness and proportionality, particularly in cases where co-offenders receive different sentences based on their respective roles in the crime. The court had to consider whether the disparity in sentencing could be justified and whether the sentence should be backdated to account for pre-sentence custody.

The court examined the principle that a sentence should reflect the offender's true culpability and role in the offence. It noted the importance of maintaining a sense of proportionality and fairness in sentencing. The court referenced Postiglione v The Queen to emphasise the necessity of ensuring that the sentence reflects the offender's actual involvement. Although the court acknowledged the discrepancy in the sentencing rationales for the co-offenders, it found that the sentence imposed on the appellant was appropriate overall. The court also highlighted the importance of providing reasons when a sentence is not backdated to account for pre-sentence custody, citing R v McHugh and R v Deeble. Despite not backdating the sentence, the court concluded that the sentence was appropriate, albeit making a minor adjustment to ensure fairness.

The court ultimately decided that the sentence was appropriate and did not warrant backdating to account for pre-sentence custody. The court underscored the need for transparency in the sentencing process and the importance of explaining why a sentence was not backdated. The court made a minor adjustment to the sentence to ensure fairness and proportionality, but it did not order a full re-sentencing. The decision underscored the need for courts to provide clear reasons for their sentencing decisions, particularly in cases involving co-offenders with differing roles in the offence.

Orders