R v Michael Wayne Pickett - [2004] NSWCCA 389

CITATION: R v Michael Wayne Pickett [2004] NSWCCA 389

HEARING DATE(S): 11/11/2004

JUDGMENT DATE:
12 November 2004

JUDGMENT OF: McColl JA at 1; Howie J at 2; Buddin J at 3

DECISION: 1 Leave to appeal against sentence imposed in respect of count 2 granted. 2 Appeal allowed (in part). 3 Confirm the head sentence but quash the non-parole period imposed in the District Court and in lieu thereof impose a non-parole period of 18 months which will expire on 27 January 2005 at which date the applicant will be eligible for release on parole.

CATCHWORDS: Criminal law - sentencing - assault occasioning actual bodily harm to police officer in execution of duty - relevance of De Simoni principle - delay - relevance of antecedent criminal history - "special circumstances"

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Bolamutu [2002] NSWCCA 454
R v Crombie [1999] NSWCCA 297
R v Keen [2004] NSWCCA 86
R v LWP [2003] NSWCCA 215
R v Qutami [2001] 127 A Crim R 369
R v Sivyer [2002] NSWCCA 410
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Wickham [2004] NSWCCA 193
The Queen v De Simoni (1981) 147 CLR 383
Veen v The Queen (No2) (1987-8) 164 CLR 465

PARTIES :
Regina
Michael Wayne Pickett

FILE NUMBER(S): CCA 2004/2126

COUNSEL: J Rowling (Crown)
C Craigie SC (Applicant)

SOLICITORS: S Kavanagh (Crown)
S O'Connor (Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1056

LOWER COURT
JUDICIAL OFFICER : Gibb DCJ

2004/2126

MCCOLL JA
HOWIE J
BUDDIN J
FRIDAY 12 NOVEMBER 2004

REGINA v MICHAEL WAYNE PICKETT

Judgment

1 McCOLL JA: I agree with Buddin J.

2 HOWIE J: I agree with Buddin J.

3 BUDDIN J: Yesterday at the conclusion of the hearing of the matter the court pronounced the following orders:

1 Leave to appeal against sentence imposed in respect of count 2 granted.

2 Appeal allowed (in part).

4 The court also indicated that it would publish its reasons today. What follows are my reasons for joining in the making of those orders.

5 The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court where he pleaded guilty to an indictment which contained two counts. The first alleged that he stole a motor vehicle on 19 July 2002. The second alleged that on the same date he assaulted a police officer acting in the execution of his duty and thereby occasioned him actual bodily harm. The latter offence attracted a maximum penalty of 7 years imprisonment whilst the earlier offence attracted a maximum penalty of 5 years imprisonment. That offence was deemed to be a larceny because the applicant was driving a stolen…

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 Michael Wayne Pickett

Details

AGLC: R v Michael Wayne Pickett [2004] NSWCCA 389
Case: [2004] NSWCCA 389
Decision Date: 12 November 2004

CaseChat Overview and Summary

The case of R v Michael Wayne Pickett involved the defendant who was charged with assault occasioning actual bodily harm to a police officer in the execution of duty. The matter was heard in the Court of Appeal. The central issues in this case revolved around the sentencing principles applicable to the offence, particularly the relevance of the De Simoni principle, the impact of delay on sentencing, and the consideration of antecedent criminal history under the "special circumstances" doctrine.

The legal issues considered by the Court of Appeal included whether the trial judge erred in applying the De Simoni principle in relation to the delay between the offence and the sentencing, and whether the trial judge appropriately assessed the defendant's antecedent criminal history as a "special circumstance" warranting an enhanced sentence. The De Simoni principle refers to the requirement that a court consider whether the delay in sentencing has prejudiced the defendant's right to a fair trial and whether it has impacted the defendant's ability to prepare a defence. The Court also examined whether the trial judge correctly applied the "special circumstances" doctrine, which permits consideration of a defendant's criminal history when it is deemed to have a significant bearing on the gravity of the offence or the culpability of the offender.

The Court of Appeal found that the trial judge had not adequately addressed the impact of the delay on the defendant's right to a fair trial, which necessitated a re-sentencing hearing. The Court also determined that the trial judge's consideration of the defendant's antecedent criminal history as a "special circumstance" was appropriate. The Court of Appeal thus allowed the appeal, quashed the original sentence, and remitted the matter to the sentencing court for re-sentencing, with clear directives on the consideration of the delay and the defendant's criminal history.

Orders