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R v Felton

R v Felton

Case [2002] NSWCCA 443 8 November 2002

Sentencing

Motor Traffic

Disqualification from driving

Criminal Law

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Reported Decision:
(2002) 135 A Crim R 328

New South Wales

Court of Criminal Appeal

CITATION: R v Felton [2002] NSWCCA 443

FILE NUMBER(S): CCA 60647/2001

HEARING DATE(S): 08/10/2002

JUDGMENT DATE:
8 November 2002

PARTIES :

Regina v Shaun Peter Felton

JUDGMENT OF: Sully J at 1; Howie J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/31/0233

LOWER COURT JUDICIAL
OFFICER : English DCJ

COUNSEL : D. Woodburne - Crown
D. Corish - Applicant

SOLICITORS: S.E. O'Connor - Crown
D.J. Humphreys - Applicant

CATCHWORDS: Criminal Law Practice and Procedure - Sentence - Failure to apply Pearce v The Queen - Motor Traffic - Disqualification from driving - effect of taking matters into account on sentence - no conviction - Habitual traffic offender provisions have no application.

LEGISLATION CITED: Justices Act 1902 - s 51A
Crimes Act 1900 - ss 114, 154A
Crimes (Sentencing Procedure) Act 1999 - ss 10, 33(2), 34, 35(4), Div 3
Criminal Appeal Act 1912 - s 6(3)
Criminal Procedure Act 1986
Road Transport (Driver Licensing) Act 1998 - ss 25A(1)
Road Transport (General) Act - ss 27, 28, 30, 31

CASES CITED:
Veen v The Queen (No. 2) (1988) 164 CLR 465
R v Cocking [1999] NSWCCA 311
Pearce v The Queen (1988) 194 CLR 610
R v AEM (Snr) [2002] NSWCCA 58

DECISION: See paragraph 43.

60647/01

SULLY J
HOWIE J
FRIDAY 8 NOVEMBER 2002

R V Shaun Peter FELTON

Judgment

1 SULLY J: I agree with Howie J.

2 HOWIE J: The applicant pleaded guilty before a magistrate to three offences and was committed for sentence to the District Court under the provisions of s 51A of the Justices Act. As a consequence, he appeared for sentence before Judge English on two counts of driving a motor vehicle without the consent of the owner contrary to s 154A of the Crimes Act and one count of being in possession of car breaking implements contrary to s 114 of that Act.

3 In respect of each of the three offences for which he was committed for sentence there was an accompanying Form 1 containing matters to be taken into account under the provisions of the Crimes (Sentencing Procedure) Act. However, the formalities of s 33(2) were not attended to and the applicant was not asked whether he admitted his guilt to those matters or whether he wished them to be taken into account. Although no point has been taken concerning this irregularity, the criminal courts should be astute to comply with the procedural formalities attending to the steps towards sentencing. They are not empty gestures, but are important safeguards to ensure that the offender is aware of what is taking place and consents to procedures that may have a significant impact upon his freedom or the period during which he will remain in custody.

4 The matters for which the applicant was to be sentenced by her Honour, therefore, were as follows:

Count 1: Drive conveyance without…

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 Felton

Details

AGLC: R v Felton [2002] NSWCCA 443
Case: [2002] NSWCCA 443
Decision Date: 8 November 2002

CaseChat Overview and Summary

The case of R v Felton was heard in a court of criminal jurisdiction in Australia. The defendant, Felton, faced sentencing following an incident that led to a criminal charge. The nature of the dispute centred on the appropriate sentence to be imposed, with particular attention to the consideration of previous traffic offences and their impact on the current sentencing process.

The legal issues before the court were twofold: first, whether the sentencing court had appropriately applied the principles set out in Pearce v The Queen, particularly in relation to the consideration of previous traffic offences in sentencing; and second, the applicability of habitual traffic offender provisions in the absence of a conviction for the current charge. The court had to determine if the previous traffic offences could be taken into account in the sentencing of the current charge, and whether the habitual traffic offender provisions could be invoked despite there being no conviction for the current offence.

The court examined the principles set out in Pearce v The Queen, which emphasise the importance of proportionality and the individual circumstances of each case in sentencing. It found that the sentencing court had failed to adequately apply these principles by disproportionately weighing the previous traffic offences against the current charge. Furthermore, the court concluded that the habitual traffic offender provisions could not be invoked in the absence of a conviction for the current offence, as these provisions are specifically designed to address habitual offending behaviour where a conviction is present. As a result, the court determined that the sentence imposed was excessive and not in accordance with the law.

The court ordered a retrial of the sentencing phase, directing the sentencing court to properly apply the principles from Pearce v The Queen and to ensure that the previous traffic offences were not disproportionately considered in the absence of a conviction for the current charge. The habitual traffic offender provisions were to be disregarded in the resentencing process.

Orders