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R v Perrin

R v Perrin

Case [2022] NSWCCA 170 15 August 2022

Appeal

Statutory Construction

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Perrin [2022] NSWCCA 170
Hearing dates: 28 March 2022
Date of orders: 15 August 2022
Decision date: 15 August 2022
Before: Ward P at [1]
Harrison J at [2]
Wright J at [3]
Decision:
(1) Questions a. and b. in the case stated are to be answered as follows:
Question a. Does s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) constrain the length of a sentence of imprisonment that may be imposed by the Local Court, or the District Court on appeal, if the offender is not serving any sentence of imprisonment at the time of sentencing?
Answer: No.
Question b. Does s 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW) constrain the length of a sentence of imprisonment that may be imposed by the Local Court, or the District Court on appeal, if the offender is not serving any sentence of imprisonment at the time of sentencing but the sentence to be imposed is made cumulative or partly cumulative on a sentence that has been served?
Answer: No.
(2) The sentence imposed by Haesler SC DCJ on 17 August 2021 is quashed.
(3) The matter is remitted to the District Court for the appeal relating to the sentence imposed on 24 June 2021 by McGowan LCM to be determined according to law.
(4) The matter is listed in the District Court arraignment list in Wollongong on Tuesday 30 August 2022 at 9:30am for mention.

Catchwords:
CRIME – Appeal and review – Stated case – Question of law – Construction of s 58 of Crimes (Sentencing Procedure) Act 1999 (NSW) – Whether “existing sentence” determined at the time the “new sentence” is being imposed or at the time the “new sentence” commences – Determined at time the “new sentence” is being imposed
CRIME – Appeal and review – Stated case – Question of law – Construction of s 58 of Crimes (Sentencing Procedure) Act 1999 (NSW) – Whether s 58 constrains the length of the sentence that can be imposed or is limited to constraining the extent of accumulation of sentences – Section 58 effectively constrains the length of a new sentence that can be imposed

Legislation Cited:
Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17, 20, 30
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24, 47, 53A, 53B, 55, 58
Crimes Act 1900 (NSW), s 444 (now repealed)
Criminal Appeal Act 1912 (NSW), s 5B
District Court Act 1973 (NSW), ss 9, 166

Cases Cited:
Huynh v R (2021) 105 NSWLR 384; [2021] NSWCCA 148
Huynh v R [2008] NSWCCA 216; 188 A Crim R 287
Perrin v R [2021] NSWDC 408
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Regina v The Queen [2004] NTCCA 9; 149 A Crim R 583
Stoneham v Director of Public Prosecutions (NSW) [2021] NSWSC 735
Williams v The Queen (1986) 161 CLR 278;

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 Perrin

Details

AGLC: R v Perrin [2022] NSWCCA 170
Case: [2022] NSWCCA 170
Decision Date: 15 August 2022

CaseChat Overview and Summary

The appeal heard by the court concerned the interpretation of section 58 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The case involved a question of law regarding the construction of this section in the context of sentencing. Specifically, the court had to determine whether the "existing sentence" is determined at the time the "new sentence" is imposed or at the time the "new sentence" commences. The case was heard in the NSW Court of Criminal Appeal.

The legal issue before the court was to ascertain the proper interpretation of section 58, which deals with the accumulation of sentences. The primary focus was on understanding whether this section constrains the length of the sentence that can be imposed or if it is limited to constraining the extent of accumulation of sentences. The court had to determine if section 58 effectively constrains the length of a new sentence that can be imposed.

The court found that section 58 constrains the length of a new sentence that can be imposed. It ruled that the "existing sentence" is determined at the time the "new sentence" is being imposed. This interpretation ensures that the sentencing process takes into account the total period of incarceration, including any time already served, thereby preventing excessive cumulative sentencing. The court's reasoning was grounded in the statutory language and the overarching objective of avoiding unjust sentence accumulation.

In light of the above, the court determined that the interpretation of section 58 should be applied in a manner that effectively limits the length of new sentences imposed on offenders. This decision ensures that sentencing decisions are made with a full understanding of the cumulative impact on the offender's total sentence.

Orders