SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
R v Newby
Citation:
[2022] ACTCA 20
Hearing Date:
10 February 2022
DecisionDate:
5 May 2022
Before:
Elkaim, Mossop and Bromwich JJ
Decision:
1. The appeal is allowed.
2. The sentence and non-parole period imposed on 2 June 2021 are set aside.
3. Mr Newby is sentenced to imprisonment for 24 years, to commence on 12 January 2020 and end on 11 January 2044.
4. A non-parole period of 15 years is set, to commence on 12 January 2020 and end on 11 January 2035.
Catchwords:
CRIMINAL LAW – Crown appeal against sentence for murder – offence committed in a family violence context - where plea of guilty entered – original sentence for a term of imprisonment of 20 years, with a non-parole period of 10 years – whether the sentencing judge failed to consider s 35(4) of the Crimes (Sentencing) Act 2005 – whether the sentencing judge erred in affording a discount for assistance to law enforcement authorities pursuant to s 36 of the Crimes (Sentencing) Act 2005 – whether the sentencing judge failed to give adequate reasons with respect to the non-parole period imposed – whether the sentence is manifestly inadequate
This is a Crown appeal from the sentence imposed by a judge of the court (sentencing judge) upon the respondent, Jayscen Anthony Newby, on 2 June 2021. Mr Newby was to face a four-week jury trial on 22 March…
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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AGLC
R v Newby [2022] ACTCA 20
Case
[2022] ACTCA 20
Decision Date
CaseChat Overview and Summary
The Supreme Court of the Australian Capital Territory, constituted by Elkaim, Mossop, and Bromwich JJ, heard a Crown appeal against the sentence imposed on the respondent, Jayscen Anthony Newby, for murder. Mr Newby had pleaded guilty to the charge and received a sentence of 20 years imprisonment with a non-parole period of 10 years. The Crown contended that the sentencing judge erred in several respects, including failing to consider specific provisions of the Crimes (Sentencing) Act 2005 (ACT), improperly affording a discount for assistance to law enforcement, inadequately justifying the non-parole period, and that the overall sentence was manifestly inadequate.
The legal issues before the Court of Appeal included whether the sentencing judge had failed to consider section 35(4) of the Crimes (Sentencing) Act 2005, which mandates consideration of the timing of a guilty plea in relation to the commencement of a trial. The Court was also required to determine if the sentencing judge erred in granting a discount for assistance to law enforcement under section 36 of the same Act, and if the reasons provided for the non-parole period were sufficient. Ultimately, the Court had to decide if the original sentence was so inadequate as to be considered manifestly so.
The Court allowed the appeal, finding that the sentencing judge had erred in the manner alleged by the Crown. The Court reasoned that the guilty plea, entered shortly before the trial was due to commence, was a recognition of the overwhelming evidence against Mr Newby, rather than a genuine indication of remorse or assistance that would warrant the substantial discount given. The Court also found that the sentencing judge failed to adequately consider the gravity of the offence, which involved a brutal and unprovoked attack on the deceased in the presence of his former partner, and that the reasons for the non-parole period were insufficient. Consequently, the Court set aside the original sentence and non-parole period.
The Court resentenced Mr Newby to a term of imprisonment of 24 years, commencing on 12 January 2020, and imposed a non-parole period of 15 years, also commencing on 12 January 2020.