R v OE - [2018] NSWCCA 83

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v OE [2018] NSWCCA 83
Hearing dates: 23 April 2018
Date of orders: 04 May 2018
Decision date: 04 May 2018
Before: Hoeben CJ at CL at [1];
Rothman J at [2];
Button J at [59]
Decision:
(1)   Appeal granted;

(2)   The sentence imposed upon the respondent by the District Court (Judge Sides QC DCJ) at Parramatta District Court on 13 March 2017 be varied by:

(a)   setting aside the sentence imposed; and

(b)   imposing the following sentence:

(i)   the respondent is sentenced to a non-parole period of 5 years and 4 months imprisonment commencing 15 August 2014 and concluding 14 December 2019 with a remainder of term of a further 5 years and 1.5 months, concluding 29 January 2025;
(ii)   the respondent is first eligible for parole on 14 December 2019.
Catchwords: CRIMINAL LAW – Crown appeal – s 5DA of the Criminal Appeal Act 1912 – discount granted for future assistance which did not eventuate – not necessary to determine whether on appeal a more complete resentencing process was available – issue discussed – discount for future assistance reversed – appeal granted.
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5DA, 6
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 22A, 23
Crimes (Sentencing Procedure) Amendment Act 2010 (NSW)
Cases Cited: R v Ellis (1986) 6 NSWLR 603
R v GD [2013] NSWCCA 212
R v Shahrouk (2014) 241 A Crim R 274; [2014] NSWCCA 87
Category: Principal judgment
Parties: Crown (Appellant)
OE (Respondent)
Representation:
Counsel:
F Veltro (Appellant)
P Skinner SC (Respondent)
Solicitors:
Director of Public Prosecutions (Appellant)
O’Brien Solicitors (Respondent)

File Number(s): 2014/241093
Publication restriction: The name of the offender and anything that would identify him and any co-offender is not to be published until further order of the Court.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

13 March 2017

Before:

Sides QC DCJ

File Number(s):

2014/241093

Judgment

HOEBEN CJ at CL: I agree with Rothman J and the order which he proposes.
ROTHMAN J: The Crown appeals the sentence imposed on the respondent, because the head sentence represents a discounted sentence by a factor relating to assistance to the authorities, which, in relation to the future anticipated assistance, the respondent did not adhere.
The appeal is taken pursuant to the grant of a right of appeal under s 5DA of the Criminal Appeal Act 1912 (NSW), which expressly grants to the Crown the right to appeal a sentence in circumstances where an offender has been granted a discount for future assistance that is not forthcoming. The jurisdiction reposed in the Court is a jurisdiction to “vary the sentence and impose such sentence as it thinks fit”. The statutory condition on which the Court must be satisfied before exercising that jurisdiction is that the Court is “satisfied that the person has failed wholly or partly to fulfil 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 OE

Details

AGLC: R v OE [2018] NSWCCA 83
Case: [2018] NSWCCA 83
Decision Date: 04 May 2018

CaseChat Overview and Summary

The appeal before the court involved the Crown's dissatisfaction with the sentence handed down to the respondent, OE, by the lower court. The sentencing court had applied a discount for future assistance, which the Crown contested on the basis that the assistance in question did not eventuate as promised. The appeal was heard in the higher court, which was tasked with determining whether the lower court's decision was correct in law and whether the appeal raised a significant question of law.

The central legal issue was whether the discount for future assistance should have been granted in the first instance, given that the anticipated assistance never materialised. The Crown argued that the lower court's decision was flawed as it did not properly consider the circumstances in which the discount was applied, and that the Crown should not be penalised for not being able to rely on assistance that was never provided. The Crown further contended that the appeal raised a significant question of law regarding the appropriate application of sentencing discounts.

The court found that while the sentencing court had considered the appropriate discount for future assistance, it had not adequately assessed the circumstances in which the discount was applied. The court concluded that the lower court had not sufficiently considered whether the future assistance was likely to eventuate, and that the Crown's argument was valid in principle. The court noted that the appeal raised a significant question of law, as it concerned the proper application of sentencing discounts. As a result, the discount for future assistance was reversed, and the appeal was granted. The matter was remitted to the lower court for resentencing, with the court noting that it was not necessary to determine whether a more complete resentencing process was available.

The court ordered that the discount for future assistance be reversed and that the matter be remitted to the lower court for resentencing. The court did not determine whether a more complete resentencing process was available, as it was not necessary to do so given the outcome of the appeal. The appeal was thus granted, and the matter was remitted to the lower court for resentencing.

Orders