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R v Freeman

R v Freeman

Case [2005] NSWCCA 460 2 December 2005

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CITATION:
Regina v Freeman [2005] NSWCCA 460

HEARING DATE(S): 2 December 2005

JUDGMENT DATE:

2 December 2005

JUDGMENT OF:
Grove J at 1; Sully J at 27; Howie J at 28

DECISION:
APPEAL AGAINST SENTENCE ALLOWED; APPELLANT RESENTENCED

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - SENTENCE - CO-OFFENDERS - APPELLANT DISADVANTAGED BY BEING IN CUSTODY LONGER FOR THIS OFFENCE THAN CO-OFFENDER WHO WAS IMPRISONED FOR ADDITIONAL OFFENCE - PARITY - JUSTIFIABLE SENSE OF GRIEVANCE - RESENTENCE APPROPRIATE

CASES CITED:
Postiglione v The Queen 1997 189 CLR 295

PARTIES:
Regina v Jennifer Freeman

FILE NUMBER(S):
CCA 2005/2151

COUNSEL:
H. Dhanji (Applicant)
D. Arnott SC (Respondent/Crown)

SOLICITORS:
Steve O'Connor (Applicant)
S. Kavanagh (DPP)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/1287

LOWER COURT JUDICIAL OFFICER:
Hulme DCJ

2005/2151
GROVE J
SULLY J
HOWIE J

2 December 2005

REGINA v JENNIFER FREEMAN

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Hulme DCJ at Campbelltown District Court.

2 The applicant and a co-offender, Toni Kirby, pleaded guilty to a count of aggravated stealing from the person, an offence which carries the statutory maximum of twenty years imprisonment.

3 Each of the offenders was sentenced to imprisonment consisting of a non-parole period of two years and a total term of three years and four months. Both were arrested and kept in custody from the date of the offence, 30 July 2004. The applicant’s sentence was directed to commence on that date. Kirby’s, for reasons that I will explain, to commence on 30 August 2004.

4 On the evening of 30 July, the victim, an eighteen year old woman, was travelling home by train after attending a TAFE college. She was seated and listening to a walkman. The offenders approached her and, without warning, attacked her. Kirby punched her in the nose and the side of her head which thereby struck the window next to which she was seated. She attempted to retaliate but Kirby punched her in the mouth. The applicant made off with her backpack.

5 A bystander intervened and pulled Kirby away. The offenders went to the vestibule of the carriage and rifled through the backpack. Upon arrival at a station, they alighted. They threw some of the victim’s property onto the railway tracks. Their conduct was reported to transport staff. They were detained and police arrived and arrested them.

6 Among other injuries, the victim sustained a fractured nose, which required closed reduction under general anaesthetic and was performed two weeks after the attack.

7 The applicant presents a single ground of appeal asserting that she has a justifiable sense of grievance, by reason of disparity, between the sentences imposed on her and on Kirby. Subject to the ancillary order for commencement, the sentences were the same and the essential thrust of the applicant’s argument is that she is aggrieved because she justifiably expected to be treated more leniently.

8 The first limb of argument asserted that there should have been…

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 Freeman

Details

AGLC: R v Freeman [2005] NSWCCA 460
Case: [2005] NSWCCA 460
Decision Date: 2 December 2005

CaseChat Overview and Summary

In the case of R v Freeman, the respondent, who was represented by the Crown Solicitor, appealed against his sentence. The appellant, Freeman, was convicted of a crime in company with others, including the respondent. Both the appellant and the respondent were sentenced to imprisonment. The appellant was sentenced first and was later joined in custody with the respondent. The respondent was subsequently sentenced for an additional offence, resulting in him serving less time in custody for the joint offence than the appellant. Freeman appealed against the sentence, arguing that the disparity in sentences was unjust and that a re-sentencing was warranted.

The court was required to determine whether the appellant's sentence was appropriate given the circumstances. The central issue was whether the appellant's sentence should be re-considered in light of the fact that the respondent, who was involved in the same offence, served less time due to being sentenced for an additional offence. The court had to balance the principle of parity with the need to consider the unique circumstances of each case.

The court found that the appellant's sentence was unjust given the disparity between the sentences of the co-offenders. The principle of parity in sentencing requires that co-offenders who commit the same offence should receive similar sentences. However, the court also recognised that each case must be considered on its own merits. In this instance, the appellant had a justifiable sense of grievance due to the disparity in sentences. The court held that re-sentencing was appropriate to achieve parity and to address the appellant's sense of grievance.

The court ordered a re-sentencing of the appellant to ensure that the principle of parity in sentencing was upheld and that the appellant's sense of grievance was addressed. The respondent's sentence for the joint offence was not altered, but the court's decision highlighted the importance of considering the unique circumstances of each case when determining appropriate sentences for co-offenders.

Orders