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R v Price

R v Price

Case [2005] NSWCCA 285 15 August 2005

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CITATION:
R v Jeremy Paul Price [2005] NSWCCA 285
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11 August 2005

JUDGMENT DATE:

15 August 2005

JUDGMENT OF:
Simpson J at 1; Johnson J at 61; Rothman J at 62

DECISION:
(i) application for leave to appeal granted; (ii) appeal allowed; (iii) the sentence imposed in the District Court quashed; (iv) in lieu thereof, the applicant sentenced to imprisonment with a non-parole period of nine months, commencing 27 October 2004 and expiring on 26 July 2005, with a balance of term of seven months, to expire on 26 February 2006; (v) direct that the applicant be released on parole forthwith.

CATCHWORDS:
application for leave to appeal against sentence - aggravated breaking and entering a dwelling - serious indictable offence of assault occasioning actual bodily harm - circumstance of aggravation knowing that a person was present - plea of guilty - finding of special circumstances - subjective circumstances - the use of actual violence taken into account as an aggravating factor - previous discharge without conviction - prior offence treated as aggravating factor under s21A(2) - use of testimonial evidence - inadequate attention to subjective case - prospects of rehabilitation - whether material misdirection as to availability of means by which sentence might be served - basis for court to form a s6(3) opinion

LEGISLATION CITED:

Crimes Act 1900, s105A, s112(
Crimes (Sentencing Procedure) Act 1999, Part 4, Division 1A, s5, s6(3), s10(1)(b), s21A, s44(2), s50, s54A(2), s54B
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Criminal Appeal Act 1912, s6(3)

CASES CITED:
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
House v The King (1936) 55 CLR 499
Johnson v The Queen (2004) 78 ALJR 616
Lowndes v The Queen (1999) 195 CLR 665
R v Berg [2004] NSWCCA 300
R v G.J. Davies [2004] NSWCCA 319
R v Hallacoglu (1992) 29 NSWLR 67; 63 A Crim R 287
R v Johnson [2005] NSWCCA 186
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Wickham [2004] NSWCCA 193
Ryan v The Queen [2001] HCA 21; 206 CLR 267
Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465

PARTIES:
Crown - Respondent
Jeremy Paul Price - Applicant

FILE NUMBER(S):
CCA 2005/958

COUNSEL:
W Dawe QC - Crown
Ms G Bashir - Applicant

SOLICITORS:
S Kavanagh - Crown
SE O'Connor - Applicant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/41/0110

LOWER COURT JUDICIAL OFFICER:
Garling DCJ

2005/958

SIMPSON J
JOHNSON J
ROTHMAN J
Monday 15 August 2005

REGINA v Jeremy Paul PRICE

Judgment

1 SIMPSON J: On 18 October 2004 the applicant entered a plea of guilty to a charge of aggravated breaking and entering a dwelling and committing a serious indictable…

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 Price

Details

AGLC: R v Price [2005] NSWCCA 285
Case: [2005] NSWCCA 285
Decision Date: 15 August 2005

CaseChat Overview and Summary

The case of R v Price involved the respondent, who was convicted of aggravated breaking and entering a dwelling and the serious indictable offence of assault occasioning actual bodily harm. The respondent pleaded guilty and was sentenced to imprisonment. The primary legal issue before the court was whether the trial judge adequately considered the respondent's prospects of rehabilitation and the possibility of serving the sentence outside of prison, leading to a potential misdirection. The appeal centred on the adequacy of the sentencing process, particularly the judge's failure to properly consider the subjective circumstances of the case and the use of actual violence as an aggravating factor.

The court examined whether the trial judge adequately assessed the evidence regarding the respondent's prospects of rehabilitation and the availability of alternative sentencing options. The judge was found to have inadequately considered the respondent's subjective circumstances and failed to give sufficient attention to the evidence presented. The court also highlighted that the judge did not properly address the use of actual violence as an aggravating factor, and did not sufficiently weigh the previous discharge without conviction as an aggravating circumstance under s21A(2). The court concluded that the trial judge's approach was flawed, leading to a potential misdirection regarding the availability of means by which the sentence might be served.

Ultimately, the court granted leave to appeal against the sentence, finding that the trial judge's inadequate consideration of the respondent's prospects of rehabilitation and the availability of alternative sentencing options constituted a material misdirection. The court emphasised the importance of properly evaluating subjective circumstances and the use of actual violence as an aggravating factor in sentencing. The appeal was allowed, and the case was remitted for re-sentencing. The court's decision underscores the necessity for trial judges to thoroughly examine all relevant factors and ensure that the sentencing process is fair and just.

Orders