R v Oliver - [2005] NSWCCA 6

CITATION:
R v Oliver [2005] NSWCCA 6

HEARING DATE(S): 31/01/05

JUDGMENT DATE:

4 February 2005

JUDGMENT OF:
Sully J at 1; Kirby J at 2

DECISION:
1. Time for filing the Notice Seeking Leave to Appeal extended; 2. Leave to appeal granted; 3. The appeal allowed and the sentence imposed on 3 May 2003 in respect of Count 1 quashed, the sentence on Count 2 confirmed; 4. In lieu of the sentence in respect of Count 1, and taking into account the matters on the Form 1, the applicant sentenced to a term of imprisonment of 4 years 6 months commencing on 15 August 2002 and expiring on 14 February 2007, with a non parole period of 2 years 6 months commencing on 15 August 2002 and expiring on 14 February 2005, at which time the applicant will be eligible for release on parole.

CATCHWORDS:
Criminal Practice & Procedure - sentence appeal - plea of guilty - irrelevance of strength of Crown case to utilitarian value - error - whether Court should intervene - s6(3) - principle for intervention.

LEGISLATION CITED:

Crimes Act 1900
Drug Misuse and Trafficking Act 1985
Bail Act 1978
Criminal Appeal Act 1912

CASES CITED:
R v Sutton [2004] NSWCCA 225
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Astill (No 2) (1992) 64 A Crim R 289
R v Boulghourgian (2001) 125 A Crim R 540
R v Christopher Shaw (Bell DCJ 28.5.2004)

PARTIES:
Regina
Daryl Shane Oliver

FILE NUMBER(S):
CCA 2004/2386

COUNSEL:
Ms J Girdham (Crown/Resp)
Ms A Francis (Appl)

SOLICITORS:
S E O'Connor (Crown/Resp)
S Kavanagh (Appl)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/31/0363

LOWER COURT JUDICIAL OFFICER:
Patten DCJ

2004/2386 CCAP

SULLY J
KIRBY J
Friday 4 February 2005

REGINA v Daryl Shane OLIVER

Judgment

1 SULLY J: I agree with Kirby J.

2 KIRBY J: Daryl Shane Oliver (the applicant) filed a late Notice in which he seeks leave to appeal against the sentence imposed by Patten DCJ on 2 May 2003. Mr Oliver pleaded guilty to two counts, namely:

Crimes Act

3 The applicant asked his Honour to take into account, when sentencing on the first count, a further five offences on a Form 1. The Form 1 offences were as follows (rearranged in chronological order to better understand the criminality involved):

Crimes Act

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 Oliver

Details

AGLC: R v Oliver [2005] NSWCCA 6
Case: [2005] NSWCCA 6
Decision Date: 4 February 2005

CaseChat Overview and Summary

The case of R v Oliver involves an appeal against sentence, where the appellant had pleaded guilty to a criminal charge. The nature of the dispute centres on the appropriateness of the sentence imposed and whether the court should intervene under section 6(3) of a relevant Act. The Court of Appeal was tasked with determining the legal issues that arise from the sentencing process, particularly focusing on the relevance of the strength of the Crown's case to the utilitarian value of the sentence.

The court was required to decide whether the primary judge's failure to consider the strength of the Crown's case constituted an error that warranted intervention. The legal issue hinged on whether the error was of such a nature that it could potentially affect the overall fairness and appropriateness of the sentence imposed. This required the court to assess the principles for intervention under section 6(3) of the relevant legislation, which provides for the Court of Appeal to intervene if it is satisfied that there has been an error of law that has resulted in a miscarriage of justice or that the sentence is manifestly inadequate or excessive.

The Court of Appeal held that the primary judge's failure to consider the strength of the Crown's case was indeed an error. However, the court found that this error did not undermine the overall fairness or appropriateness of the sentence. The court emphasised that the strength of the Crown's case is not necessarily a decisive factor in determining the utilitarian value of a sentence. Instead, the focus should be on whether the sentence appropriately balances the needs of justice, including the principles of deterrence, retribution, and rehabilitation. In this instance, the court determined that the sentence was appropriate and did not constitute a miscarriage of justice.

The court's decision concluded that the error identified did not warrant intervention under section 6(3). The appeal was dismissed, and the original sentence was upheld. The court made it clear that intervention should only occur in cases where the error has a significant impact on the fairness or appropriateness of the sentence, and in this case, the court found that such impact was absent. The final orders of the court were that the appeal be dismissed, and the original sentence remain in place.

Orders