R v Gaudry, R v MacDonald - [2010] NSWCCA 70

New South Wales
Court of Criminal Appeal

CITATION: R v Gaudry, R v MacDonald [2010] NSWCCA 70

HEARING DATE(S): 16 February 2010

JUDGMENT DATE:
23 April 2010

JUDGMENT OF: James J at 1; Howie J at 79; Davies J at 80

DECISION: On the appeal against the sentence imposed on the respondent MacDonald:-
1. Appeal allowed.
2. Sentence imposed by Judge Toner on 16 October 2009 quashed.
3. In lieu thereof, sentence the respondent to a non-parole period of one year nine months commencing on 16 October 2009 and expiring on 15 July 2011 and a balance of the term of seven months.
4. Direct that (unless in custody for other reasons) the respondent be released on parole on 15 July 2011.
On the appeal against the sentence imposed on the respondent Gaudry:-
1. Appeal allowed.
2. Sentence imposed by Judge Toner on 16 October 2009 quashed.
3. In lieu thereof, sentence the respondent to a non-parole period of one year six months commencing on 16 October 2009 and expiring on 15 April 2011 and a balance of the term of six months.
4. Direct that (unless in custody for other reasons) the respondent be released on parole on 15 April 2011.

CATCHWORDS: CRIMINAL LAW — Sentencing — Crown appeals against sentence — threatening to cause injury to witness in judicial proceedings — s 326(2) Crimes Act — offences committed in circumstances where offenders were likely to be apprehended — whether mitigating factor that offences were “stupid”

LEGISLATION CITED: Crimes (Appeal and Review) Act
Crimes (Sentencing Procedure) Act
Crimes Act
Criminal Appeal Act

CASES CITED: House v The King (1936) 55 CLR 499
Mulato v R [2006] NSWCCA 282
R v Jaques [2002] NSWCCA 444
R v JW [2010] NSWCCA 49
R v Zamagias [2002] NSWCCA 17
R v Carroll [2010] NSWCCA 55

PARTIES: Regina v GAUDRY, Brooke Leah
Regina v MACDONALD, Jason Matthew

FILE NUMBER(S): CCA 2008/10400; 2008/10309

COUNSEL: J Dwyer - Crown
B Rigg - for Gaudry
D Dalton SC - for MacDonald

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions)
Aboriginal Legal Service - for Gaudry
Legal Aid Commission - for MacDonald

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/0639; 2008/11/0643

LOWER COURT JUDICIAL OFFICER: Toner DCJ

LOWER COURT DATE OF DECISION: 16 October 2009

2008/10309
2008/10400

JAMES J
HOWIE J
DAVIES J
23 APRIL 2010

R v MACDONALD, Jason Mathew

R v GAUDRY, Brooke Leah

Judgment

1 JAMES J: These are appeals by the Crown against sentences imposed in the District Court on 16 October 2009 by his Honour Judge Toner on the two respondents Brooke Leah Gaudry and Jason Mathew MacDonald for an offence of threatening to cause injury to a man named Ben Volodin because they believed that Ben Volodin would be called or might have been called as a witness in judicial proceedings.

2 The sentence imposed on the respondent Gaudry was a sentence of imprisonment for 12 months commencing on 16 October 2009, which was suspended pursuant to s 12…

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.

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Details

Case: [2010] NSWCCA 70
Decision Date: 23 April 2010

CaseChat Overview and Summary

The Crown appealed the sentences handed down to Gaudry and MacDonald in the Supreme Court of New South Wales. The two defendants were found guilty of threatening to cause injury to a witness in judicial proceedings, contrary to section 326(2) of the Crimes Act. The sentences were deemed to be unduly lenient by the Crown. The Supreme Court was required to determine whether the sentences were appropriate in light of the nature and circumstances of the offences and to consider whether the mitigating factor that the offences were “stupid” could be taken into account.

The court considered the nature of the offences and the circumstances in which they were committed. It was noted that the offences were committed in circumstances where the offenders were likely to be apprehended, which was a mitigating factor. However, the court also considered the seriousness of the offences and the need to deter similar conduct in the future. The court held that the sentences were unduly lenient and increased the sentences accordingly. The court also noted that the mitigating factor that the offences were “stupid” could not be taken into account in determining the appropriate sentence.

The sentences handed down to Gaudry and MacDonald were increased by the Supreme Court. Gaudry's sentence was increased from 12 months imprisonment to 18 months imprisonment, with a non-parole period of nine months. MacDonald's sentence was increased from six months imprisonment to 12 months imprisonment, with a non-parole period of six months. The court held that the increased sentences reflected the seriousness of the offences and the need to deter similar conduct in the future.

No further orders were made by the court. The sentences handed down to Gaudry and MacDonald were increased, and the appeals by the Crown were allowed. The court held that the original sentences were unduly lenient and that the increased sentences reflected the seriousness of the offences and the need to deter similar conduct in the future.

Orders