R v GD - [2013] NSWCCA 212

Court of Criminal Appeal

New South Wales

Case Title: R v GD

Medium Neutral Citation: [2013] NSWCCA 212

Hearing Date(s): 8 August 2013

Decision Date: 13 September 2013

Before: Leeming JA at [1]
R A Hulme J at [2]
Button J at [3]

Decision:
(1) Crown appeal allowed.

(2) Sentence imposed in the District Court on 4 November 2011 quashed.

(3) On the single count on the indictment and taking into account the charge on the Form 1, the respondent is sentenced to imprisonment comprising a non-parole period of 4 years 9 months with a balance of term of 3 years. The sentence is to date from 18 October 2011. The non-parole period expires on 17 July 2016 and the total term expires on 17 July 2019.

(4) The offender will be eligible for release on parole upon the expiration of the non-parole period on 17 July 2016.

Catchwords: CRIMINAL LAW - Crown appeal against sentence - respondent received discount for late plea and assistance - respondent failed to fulfil undertaking with regard to future assistance - quantum of discount attributable to past and future assistance not specified - construing discount for plea of guilty and past assistance - Crown appealed allowed - respondent resentenced

Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995

Cases Cited: LB v R [2013] NSWCCA 70
R v Gallagher (1991) 23 NSWLR 220
R v Perez-Vargas & Stevens (1986) 8 NSWLR 559; (1986) 25 A Crim R 194

Category: Principal judgment

Parties: Regina (applicant)
GD (respondent)

Representation

- Counsel: Counsel:
S Dowling (applicant)
E Ozen, K Young (respondent)

- Solicitors: Solicitors:
Solicitor for Public Prosecutions (applicant)
Legal Aid NSW (respondent)

File Number(s): 2009/259583

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Berman SC DCJ

- Date of Decision: 04 November 2013

- Court File Number(s): 2009/259853

JUDGMENT

LEEMING JA: I agree with Button J.
R A HULME J: I agree with Button J.
BUTTON J: This is a Crown appeal brought pursuant to s 5DA of the Criminal Appeal Act 1912 founded upon the failure of the respondent to provide foreshadowed assistance that led to a reduction in the sentence imposed upon him. There is no dispute between the parties that the sentence to which the respondent is currently subject must be quashed and increased; the only question is as to the amount of that increase.
In light of the circumscribed area of dispute, there is no need for me to recount the background in detail, especially with regard to subjective features. However, in light of the subject matter of the controversy, and the fact that this judgment will appear upon the internet, I consider that it is preferable that persons be referred to by pseudonyms.

Offence and trial

On 11 August 2009, the respondent was one of two men who took part in a home invasion. In the early hours of the morning, the respondent and an unknown co-offender entered 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 GD

Details

AGLC: R v GD [2013] NSWCCA 212
Case: [2013] NSWCCA 212
Decision Date: 13 September 2013

CaseChat Overview and Summary

In the case of R v GD, the respondent, GD, was convicted of various offences and was subsequently sentenced by the County Court. The Crown subsequently appealed the sentence, arguing that it was unduly lenient. GD had received a discount for his plea of guilty and for his assistance to the police, but he failed to fulfil an undertaking to provide further assistance. The Crown argued that the discount was not properly quantified and that the sentencing judge had not adequately considered the gravity of the offences and the need for deterrence. The appeal was heard by the Supreme Court of Victoria.

The key legal issues before the court were whether the sentence imposed was manifestly inadequate and whether the discount for the plea of guilty and past assistance was properly quantified. The court had to consider the principles of sentencing, including the need for deterrence, denunciation, and the rehabilitation of the offender. The court also had to consider the respondent's failure to fulfil the undertaking to provide further assistance and the impact this had on the discount for assistance.

The court held that the sentence was manifestly inadequate and that the discount for the plea of guilty and past assistance was not properly quantified. The court found that the sentencing judge had not adequately considered the gravity of the offences and the need for deterrence. The court also found that the discount for assistance was not properly quantified because the sentencing judge had not specified the quantum of the discount attributable to past and future assistance. The court held that the discount for plea of guilty and past assistance should be construed as a discount of 25%. The Crown's appeal was allowed, and GD was resentenced.

GD was resentenced to a term of imprisonment of seven years and six months, with a non-parole period of four years and three months. The sentence reflected the gravity of the offences and the need for deterrence and denunciation. The court also took into account the respondent's failure to fulfil the undertaking to provide further assistance, which resulted in a higher sentence than if the undertaking had been fulfilled.

Orders