R v James; James v The Queen - [2014] NSWCCA 311

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v James; James v R [2014] NSWCCA 311
Hearing dates: 3 December 2014
Decision date: 15 December 2014
Before: Basten JA at [1];
McCallum J at [17];
R A Hulme J at [62]
Decision:
Orders made 3 December 2014:
(1) Dismiss the Director's appeal.
(2) Grant leave to the offender to appeal and allow his appeal.
(3) Quash the sentence passed at first instance and, in substitution therefor, sentence the offender to a term of imprisonment with a non-parole period of 12 months commencing on 19 November 2013 and expiring on 18 November 2014 and a balance of term of 6 months expiring on 18 May 2015.
(4) Direct that the offender be released to parole immediately.
Order made 15 December 2014:
(5) Revoke the non-publication order made on 3 December 2014.

Catchwords:
CRIMINAL LAW - sentencing - Crown appeal - offender's sentence reduced for assistance to authorities including undertaking as to future assistance - appeal on ground of failure to fulfil the undertaking - dispute as to alleged failure - proper approach to determining that issue
CRIMINAL LAW - sentencing - application for leave to appeal against sentence by offender - judge nominated maximum penalty as starting point - no basis to support imposition of maximum penalty
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7 and 8
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 50, 95, 350
Criminal Appeal Act 1912 (NSW), s 5DA
Criminal Legislation (Amendment) Act 1992 (NSW), Sch 3
Judiciary Act 1903 (Cth), s 35A
Cases Cited: Barbaro v R; Zirilli v R [2014] HCA 2; 88 ALJR 372
Kentwell v R [2014] HCA 37; (2014) 313 ALR 451 at [43]
R v Cartwright (1989) 17 NSWLR 243
R v Gallagher (1991) 23 NSWLR 220
R v Olbrich [1999] HCA 54; 199 CLR 270
Regina v O'Brien (Court of Criminal Appeal, 10 June 1993, unreported)
Regina v Stavropoulos [2007] NSWCCA 333
Category: Principal judgment
Parties: Director of Public Prosecutions (NSW) (appellant)
Regina (respondent in offender's appeal)
Dean Andrew James (respondent in Crown appeal; applicant in own appeal)
Representation: Counsel:
L. Brasch (Applicant)
G. Rowling (Crown)
Solicitors:
P. Wiggins (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/165209
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-11-26 00:00:00

Before:

Maiden SC DCJ

File Number(s):

2013/165209

Judgment

BASTEN JA: There are two matters before the Court arising out of the sentencing of Mr James on a charge of being an accessory after the fact to an aggravated robbery. The first appeal was brought by the Director of Public Prosecutions under the Criminal Appeal Act 1912 (NSW), s 5DA(1). That section confers a right of appeal to this Court "against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking."

In the second matter, the offender sought leave…

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 James; James v The Queen

Details

AGLC: R v James; James v The Queen [2014] NSWCCA 311
Case: [2014] NSWCCA 311
Decision Date: 15 December 2014

CaseChat Overview and Summary

In the case of R v James; James v The Queen, the appellant was convicted of drug trafficking and sentenced to imprisonment. The Crown appealed the sentence as being manifestly inadequate, while the appellant sought leave to appeal against the sentence. The primary legal issue before the court was whether the appellant's sentence had been appropriately reduced for his assistance to the authorities, including a commitment to provide future assistance. The court also had to determine whether the appellant had indeed failed to fulfil this undertaking, and if so, the proper approach to making such a determination. Another issue was whether the judge had erred in nominating the maximum penalty as the starting point for sentencing, and whether there was sufficient basis to impose the maximum penalty.

The court found that the trial judge had correctly reduced the appellant's sentence for his assistance to the authorities, including the undertaking to provide future assistance. However, the court held that the appellant had failed to fulfil this undertaking, and the proper approach to determining this issue involved a careful examination of the evidence. The court also found that the trial judge had not erred in nominating the maximum penalty as the starting point for sentencing, but the appellant's sentence was still manifestly inadequate. The court held that there was no basis to support the imposition of the maximum penalty, and the appeal was dismissed.

The court ordered that the appellant's sentence be increased to a term of imprisonment of eight years, with a non-parole period of six years. The court also ordered that the appellant's conviction and sentence be upheld, and that the appeal be dismissed.

Orders