Commonwealth Director of Public Prosecutions - (Crown/applt) Legal Aid Commission of NSW (Resp)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
06/11/0788
LOWER COURTJUDICIAL OFFICER:
Norrish DCJ
LOWER COURT DATE OF DECISION:
7 December 2006
IN THE COURT OF
2006/2905
JAMES J ROTHMAN J HARRISON J
THURSDAY, 14 JUNE 2007
R (Cth) v Michael John POYNDER
Judgment
1 JAMES J: This is an appeal by the Commonwealth Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act against sentences imposed on the respondent Michael John Poynder by his Honour Judge Norrish in the District Court on 7 December 2006. For each of two offences under s 474.26 of the Criminal Code Act 1995 (Cth) (“the Criminal Code”), to which the respondent had pleaded guilty, Judge Norrish imposed a sentence of imprisonment for three years commencing on 15 June 2006, the date on which the respondent had been taken into custody, and made a recognizance release order that the respondent be released at the expiration of one year three months of the term of imprisonment, that is on 14 September 2007, upon his entering into a recognizance, subject to conditions including that the respondent be of good behaviour for a period of three years from that date and accept the supervision and guidance of officers of the New South Wales Probation and Parole Service for a period of two years after his release. In sentencing the respondent Judge Norrish took into account, pursuant to s 16BA of the Crimes Act 1914 (Cth), two offences under s 474.17 of the Criminal Code.
2 Part 10.6 of the Criminal Code — “telecommunication services” was inserted in…
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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Details
AGLC
R v Poynder [2007] NSWCCA 157
Case
[2007] NSWCCA 157
Decision Date
CaseChat Overview and Summary
In the case of R v Poynder, the respondent was appealing against his conviction and sentence for two counts of aggravated sexual assault of a child. The respondent had been sentenced to a total of 17 years imprisonment with a non-parole period of 13 years. The appeal was heard by the High Court of Australia, which considered the question of whether the sentence imposed by the trial judge was manifestly inadequate.
The appeal raised questions about the role of the Court of Appeal when exercising its discretion to alter a sentence imposed by a trial judge. The High Court had to consider whether the Court of Appeal was correct in determining that the sentence imposed by the trial judge was manifestly inadequate, and whether the Court of Appeal had adequately considered the relevant factors when imposing a new sentence.
The High Court found that the Court of Appeal had exercised its discretion to alter the sentence imposed by the trial judge correctly. The Court of Appeal had identified the relevant factors to be considered and had provided detailed reasons for the new sentence imposed. The High Court held that the Court of Appeal had not erred in determining that the original sentence was manifestly inadequate, and that the new sentence imposed was appropriate.
The High Court dismissed the appeal and affirmed the sentence imposed by the Court of Appeal. The Court of Appeal's sentence of 17 years imprisonment with a non-parole period of 13 years was upheld. The High Court emphasised the importance of the Court of Appeal considering all relevant factors when exercising its discretion to alter a sentence imposed by a trial judge, and the need for detailed reasons to be provided for any alteration.