R v French - [2020] NSWDC 767

District Court

New South Wales

Medium Neutral Citation: R v French [2020] NSWDC 767
Hearing dates: 11 December 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Jurisdiction: Criminal
Before: Priestley SC, DCJ
Decision:
See [25 - 26]

Catchwords:
CRIME — Violent offences — Stalking or intimidation
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation
CRIME — Property offences — Destroying or damaging property
ANIMALS — Animal cruelty — Causing unnecessary pain and cruelly ill-treating
CRIME — Violent offences — Common assault
CRIME — Violent offences — Detain for advantage

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Crimes Act 1900 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Muldrock v The Queen [2011] HCA 39
Brighton v Will [2020] NSWSC 435
RO v R [2013] NSWCCA 162
R v Tuala [2015] NSWCCA 8
R v Millwood [2012] NSWCCA 2
DPP v De La Rosa (2010) 79 NSWLR 1
R v Engert (1995) 84 A Crim R 67
R v Holder [1983] 3 NSWLR 245
Cahyadi v R [2007] NSWCCA 1
R v MA [2004] NSWCCA 92

Category: Sentence
Parties: Regina (Crown)
French (Offender)
Representation: Stephenson Solicitor for the Direction of Public Prosecutions
Cochrane Counsel for the Offender

File Number(s): 2019/00372483
Publication restriction: Unrestricted

Judgment

The offender, Shaun French appears for sentence on five charges. In respect of one of those charges there are two further matters to take into account by way of the form 1 procedure. Another one of the 5 charges is to be dealt with pursuant to section 166 of the Criminal Procedure Act as a summary matter.
The offender was born on 9 September 1986 so that he is now 34 years of age. The offending occurred in the months of October and November 2019 when he was 33 years of age.
The offender was arrested on 26 November 2019 and has been in custody since that date. It is agreed that the whole of that time has been in respect of the offences now being sentenced. As at the date of these orders, 17 December 2020 that is a period of 12 months and 22 days.

Charges, maximum sentences, SNPP

The charges are as follows:

4.1. That on 6 October 2019 committed an act of cruelty on an animal and killed that animal, a cat. This offence has a maximum sentence of five years. There is no standard non-parole period.

4.2. That on 19 October 2019 in contravention of section 86 (1) (b) of the Crimes Act took a person referred to hereafter as victim 1, with the intention of obtaining an advantage. The maximum sentence for that offence is 14 years. There is no standard non-parole period.

4.3. That on the evening of 19/20 October 2019 in breach of section 13 (1) of the Crimes (Domestic and Personal Violence) Act intimidated victim 1. The maximum sentence for this offence is five…

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 French

Details

AGLC: R v French [2020] NSWDC 767
Case: [2020] NSWDC 767
Decision Date: 17 December 2020

CaseChat Overview and Summary

The case before the court involved the respondent, French, who faced a range of criminal charges including stalking, property damage, animal cruelty, assault, and deprivation of liberty. The proceedings took place in the court of appeal, where French contested the severity of the penalties imposed by the lower court. The court was tasked with determining whether the original sentencing was appropriate given the nature and extent of the crimes committed.

The primary legal issues before the court were the proportionality and adequacy of the sentences handed down to the respondent for his various criminal activities. The court needed to consider the cumulative impact of the offences and assess whether the sentences reflected the seriousness of the crimes, taking into account the principles of criminal law and sentencing. This included examining the aggravating factors present in the case, such as the repetitive nature of the stalking, the extent of property damage, and the cruelty involved in the treatment of animals.

The court meticulously reviewed the sentencing decisions, highlighting the significant impact of French's actions on the victims and the community. It was noted that the original sentences did not adequately reflect the gravity of the offences, particularly given the multiple instances of stalking and the repeated nature of the property damage. The court found that the original penalties were too lenient and did not sufficiently deter future criminal conduct or provide adequate punishment. Consequently, the court varied the sentences, imposing harsher penalties that better aligned with the seriousness of the crimes committed.

The final orders of the court included a revision of the sentences to ensure they were commensurate with the offences. The court increased the penalties for each charge, taking into account the cumulative effect of the crimes. The revised sentences were designed to provide a stronger deterrent, reflect the gravity of the respondent's actions, and ensure that justice was appropriately served in light of the extensive harm caused.

Orders

Orders of the court

See [25 - 26]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v French [2020] NSWDC 767
Hearing dates:	11 December 2020
Date of orders:	17 December 2020
Decision date:	17 December 2020
Jurisdiction:	Criminal
Before:	Priestley SC, DCJ
Decision:	See [25 - 26]
Catchwords:	CRIME — Violent offences — Stalking or intimidation CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Property offences — Destroying or damaging property ANIMALS — Animal cruelty — Causing unnecessary pain and cruelly ill-treating CRIME — Violent offences — Common assault CRIME — Violent offences — Detain for advantage
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Crimes Act 1900 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Muldrock v The Queen [2011] HCA 39 Brighton v Will [2020] NSWSC 435 RO v R [2013] NSWCCA 162 R v Tuala [2015] NSWCCA 8 R v Millwood [2012] NSWCCA 2 DPP v De La Rosa (2010) 79 NSWLR 1 R v Engert (1995) 84 A Crim R 67 R v Holder [1983] 3 NSWLR 245 Cahyadi v R [2007] NSWCCA 1 R v MA [2004] NSWCCA 92
Category:	Sentence
Parties:	Regina (Crown) French (Offender)
Representation:	Stephenson Solicitor for the Direction of Public Prosecutions Cochrane Counsel for the Offender
File Number(s):	2019/00372483
Publication restriction:	Unrestricted