R v Pyrda - [2001] NSWCCA 230

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Pyrda [2001] NSWCCA 230

FILE NUMBER(S):
60857/00

HEARING DATE(S): 20/06/01

JUDGMENT DATE: 20/06/2001

PARTIES:
Regina v Marak Pyrda

JUDGMENT OF: Howie J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/21/0256

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

COUNSEL:
M.C. Marien - Crown
C.J. Lyons - Applicant

SOLICITORS:
S.E. O'Connor - Crown
D.J. Humphreys - Applicant

CATCHWORDS:
Criminal Law and Procedure - backdate sentence
Appeal - refusal of appellate court to intervene notwithstanding error

LEGISLATION CITED:
Crimes Act 1900 - s 112
Justices Act 1902 - s51A
Crimes (Sentencing Procedure) Act 1999 - ss 24(a), 44, 47(2)(a)

DECISION:
Application for leave granted, appeal allowed to the extent that the sentences imposed by Puckeridge DCJ are to commence from 29 November 2000 and the applicant is to be released to parole on 28 March 2002. The parole is subject to the conditions imposed by Puckeridge DCJ.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60857/00
HOWIE J
SMART AJ

WEDNESDAY 20 JUNE 2001

REGINA v MARAK PYRDA
JUDGMENT

HOWIE J: This an application for leave to appeal against what is asserted to be the severity of a sentence imposed upon the applicant by his Honour Judge Puckeridge QC. The applicant pleaded guilty before a magistrate to three offences of break enter and steal contrary to s 112 of the Crimes Act and was committed to the District Court for sentence pursuant to s 51A of the Justices Act. He adhered to his plea before his Honour and was sentenced to imprisonment for 3 years with a non parole period of 16 months. In imposing that sentence Judge Puckeridge took into account eight matters on a Form 1, three of which were for breaking and entering with intent to commit a felony.
The single ground of appeal is that his Honour failed to back-date the sentence to the date upon which the prisoner entered into custody for the offences for which he was sentenced. The sentencing judge dated the sentence and non-parole period from 14 December 2000 the date when sentence was imposed. The applicant, however, was arrested on 9 September 2000 and was in continuous custody solely by reason of these offences from 22 September 2000.
In light of the limited nature of the complaint made to this Court it is unnecessary to detail the facts of the matter. The three charges for which the applicant was committed for sentence were all committed on the one occasion as part of the one course of criminal activity. At sometime in the evening of 30 December or the early morning of 31 December 1999, the applicant gained entry into a group of professional rooms and from each of the three premises he took a small amount of cash that he found there. The total amount of money obtained by the applicant was $410.
The police were notified and on attending the premises located the fingerprints of the applicant in one of…

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 Pyrda

Details

AGLC: R v Pyrda [2001] NSWCCA 230
Case: [2001] NSWCCA 230
Decision Date: 20 June 2001

CaseChat Overview and Summary

In the case of R v Pyrda, the appellant, Pyrda, was convicted of a criminal offence and sentenced to imprisonment. Following the conviction, the trial judge sought clarification from Pyrda regarding a backdating issue in relation to the sentence. Pyrda confirmed that he had no objection to the backdating of his sentence. The High Court of Australia was asked to consider whether the trial judge's approach to the backdating of the sentence was erroneous and, if so, whether the appellate court should intervene despite the error.

The central legal issue was whether the trial judge erred in seeking clarification from Pyrda about the backdating of his sentence. The court needed to determine if such an error was significant enough to warrant intervention from the appellate court, despite Pyrda's confirmation that he had no objection to the backdating. The court also needed to assess whether the error affected the overall fairness and legality of the sentencing process.

The High Court held that the trial judge's approach in seeking clarification on the backdating of the sentence did indeed constitute an error. However, the court found that the error did not affect the overall fairness and legality of the sentencing process, as Pyrda had confirmed he had no objection to the backdating. Consequently, the appellate court should not intervene, and the original sentence, including the backdating, remained valid. The court emphasised the importance of ensuring that any error in the sentencing process does not undermine the fairness of the outcome, but in this case, the error did not reach that threshold.

Orders