R v JW [2010] NSWCCA 49 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
9 December 2009
JUDGMENT DATE:
22 March 2010
JUDGMENT OF:
Spigelman CJ at 1; Allsop P at 205; McClellan CJatCL at 206; Howie J at 206; Johnson J at 206
DECISION:
1 Leave granted to amend the notice of appeal by adding the grounds set out in par [38] hereof. 2 Quash the sentence on Count 2 imposed by North DCJ on 21 August 2009. 3 On Count 2, the respondent is sentenced to a term of imprisonment of two years. 4 The sentence in Order 3 is suspended, pursuant to s 12 of the Crimes (Sentencing Procedure) Act upon the respondent entering into a bond for two years · to be of good behaviour during the period of the bond · to place himself under the supervision of the New South Wales Department of Juvenile Justice and obey any reasonable conditions imposed upon him by the Department, including conditions as to education or employment · to appear before the Supreme Court of New South Wales if called upon to do so at any time · to advise the Registrar of the Criminal Listing Directorate of any change of residential address
CATCHWORDS:
CRIMINAL LAW – appeal against sentence – appeals by Crown – procedure – requirement for the Crown to expressly state grounds in notice of appeal - CRIMINAL LAW – appeal against sentence – appeals by Crown – s 68A of the Crimes (Appeal and Review) Act 2001 – removal of double jeopardy as a principle of re-sentencing - CRIMINAL LAW – appeal against sentence – appeals by Crown – exercise of discretion – s 68A of the Crimes (Appeal and Review) Act 2001 – removal of double jeopardy element – residual discretion to reject a Crown appeal - CRIMINAL LAW – appeal against sentence – appeals by Crown – s 68A of the Crimes (Appeal and Review) Act 2001 – frequency of Crown appeals as a sentencing principle in individual cases – the rarity principle - CRIMINAL LAW – appeal against sentence – grounds for interference – parity between co-offenders carrying out a joint-criminal enterprise - CRIMINAL LAW – appeal against sentence – grounds for interference – sentence manifestly excessive or inadequate.
[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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AGLC
R v JW [2010] NSWCCA 49
Case
[2010] NSWCCA 49
Decision Date
CaseChat Overview and Summary
In the Supreme Court of New South Wales, the respondent, JW, appealed against his sentence. JW had been convicted of various criminal offences and was sentenced by the District Court. The Crown subsequently appealed the sentence, claiming it was manifestly inadequate. The appeal raised several complex legal issues, including the procedural requirements for a Crown appeal under section 68A of the Crimes (Appeal and Review) Act 2001, the principles guiding the exercise of discretion in such appeals, and the grounds upon which the sentence could be deemed manifestly inadequate.
The court considered whether the Crown had complied with the procedural requirements for appealing a sentence. It examined the need for the Crown to expressly state the grounds of appeal in the notice of appeal and the implications of the removal of double jeopardy as a principle in re-sentencing. The court also evaluated the exercise of discretion by the Crown in appealing the sentence, considering whether the frequency of such appeals could serve as a sentencing principle. Additionally, the court deliberated on the principles of parity between co-offenders and whether the sentence was manifestly excessive or inadequate.
The court found that the Crown had adequately stated the grounds for appeal and that the removal of double jeopardy as a principle did not preclude the Crown from appealing a sentence. The court noted the residual discretion to reject a Crown appeal, even in the absence of double jeopardy. It also acknowledged the rarity principle, which recognises the infrequent nature of Crown appeals as a factor in sentencing. Furthermore, the court examined the parity between co-offenders and determined that the sentence was not manifestly excessive or inadequate. Consequently, the appeal was dismissed.
The court's final orders were that the appeal by the Crown against the sentence of JW be dismissed, and the original sentence be upheld.