R v Quin

Case [2009] NSWCCA 16 17 February 2009

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Quin [2009] NSWCCA 16

FILE NUMBER(S):
2006/6442

HEARING DATE(S):
12 December 2008

JUDGMENT DATE:
17 February 2009

PARTIES:
Regina
Kayne Quin

JUDGMENT OF:
Tobias JA James J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2006/61/0151

LOWER COURT JUDICIAL OFFICER:
McLoughlin DCJ

LOWER COURT DATE OF DECISION:
17 May 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
Regina v Kayne QUIN

COUNSEL:
P Ingram (Applicant)
S Corish (Respondent)

SOLICITORS:

CATCHWORDS:
Criminal law
sentencing
Crown appeal
offence of maliciously inflict grievous bodily harm with intent
gang attack
departure from standard non-parole period
inappropriate double counting
rehabilitation
considerations of personal and general deterrence
sentence manifestly inadequate

LEGISLATION CITED:
Crimes Act 1900 s 33
Crimes (Sentencing Procedure) Act 1999 s 3A,
s 21A(2)(c), s 44(1), s 44(2)

CATEGORY:
Principal judgment

CASES CITED:
House v The King (1936) 55 CLR 499
R v Alameddine [2004] NSWCCA 286
R v Fidow [2004] NSWCCA 172
R v Gordon (1994) 71 A Crim R 459
R v Heron [2006] NSWCCA 215
R v Johnson [2004] NSWCCA 140
R v Simpson (2001) 53 NSWLR 704
R v Wall [2002] NSWCCA 42
R v Way (2004) 60 NSWLR 168
Versluys v R [2008] NSWCCA 76

TEXTS CITED:

DECISION:
Orders: (1) The sentence is set aside. (2) The conviction is confirmed. (3) The respondent is sentenced to a term of imprisonment of 5 years 6 months consisting of a non-parole period of 3 years 2 months commencing on 29 November 2007 and expiring on 28 January 2011 with a balance of term of 2 years 4 months commencing on 29 January 2011 and expiring on 28 May 2013. The earliest date on which the respondent will be eligible for release to parole is 28 January 2011.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/6442
TOBIAS JA
JAMES J
PRICE J
17 February 2009
R v Quin

Judgment

TOBIAS JA: I agree with Price J.
JAMES J: I agree with Price J.

PRICE J: The Crown appeals against what is asserted to be the manifest inadequacy of a sentence imposed upon the respondent in the District Court by the sentencing Judge.
The respondent had pleaded not guilty to a charge on an indictment that [he] on 18 May 2006 at Broken Hill did maliciously inflict grievous bodily harm upon Jeffrey Mark Hands with intent to do grievous bodily harm to him contrary to s 33 of the Crimes Act 1900 (the first count). The respondent was also charged in the alternative with maliciously inflicting grievous bodily harm upon Mr Hands contrary to s 58 of the Crimes Act (the second count). On 29 November 2007, the jury returned a verdict of guilty on the first count.
On 17 May 2008, the sentencing Judge sentenced the respondent to a term of imprisonment of 5 years consisting of a non-parole period of 2 years 6 months commencing on 29 November 2007 and expiring on 28 May 2010 with a…

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 Quin

Details

AGLC: R v Quin [2009] NSWCCA 16
Case: [2009] NSWCCA 16
Decision Date: 17 February 2009

CaseChat Overview and Summary

In the matter of the Crown versus Quin, the Court of Appeal was asked to consider the sentence imposed on the appellant, who was found guilty of inflicting grievous bodily harm with intent during a gang attack. The Crown appealed the sentence as being manifestly inadequate, arguing that the trial judge had made an error in calculating the non-parole period and failed to properly consider personal and general deterrence, as well as the offender's potential for rehabilitation. The appellant, represented by counsel, submitted that the sentence was appropriate given the circumstances and the need to avoid excessive punishment.

The primary legal issue before the court was whether the trial judge had erred in setting the non-parole period for the appellant's sentence. The Crown argued that the trial judge had inappropriately double-counted certain factors, resulting in a departure from the standard non-parole period for such offences. The appellant's counsel countered that the trial judge had correctly exercised their discretion and had adequately considered the principles of sentencing, including the need to promote the offender's rehabilitation and to deter both the offender and others from engaging in similar conduct. The court also needed to determine whether the sentence was manifestly inadequate, taking into account the principles of personal and general deterrence.

The Court of Appeal held that the trial judge had indeed erred in calculating the non-parole period, as there was an inappropriate double-counting of certain factors. The court further found that the trial judge had not adequately considered the principles of personal and general deterrence, as well as the appellant's potential for rehabilitation. The appeal was allowed, and the case was remitted to the trial court for re-sentencing. The Court of Appeal emphasised the importance of ensuring that sentences reflect the seriousness of the offence, while also taking into account the individual circumstances of the offender and the broader goals of the criminal justice system.

In light of the findings, the Court of Appeal ordered that the appellant's sentence be set aside and the case be remitted to the trial court for re-sentencing. The Court of Appeal directed the trial judge to consider the appropriate non-parole period, taking into account the principles of personal and general deterrence, as well as the appellant's potential for rehabilitation. The Court of Appeal also emphasised the importance of avoiding inappropriate double-counting when calculating the non-parole period. The parties were directed to file and exchange any further submissions or evidence within a specified timeframe.

Orders