Macfarlan JA at [1] Price J at [2] Button J at [3]
Decision:
(1) Crown appeal against sentence allowed.
(2) The aggregate sentence imposed by the District Court on 26 August 2011 is quashed.
(3) The respondent is re-sentenced as follows: an aggregate head sentence of imprisonment for 7 years 7 months to date from 16 July 2010 and expire on 15 February 2018 is imposed, with an aggregate non-parole period of imprisonment for 5 years 5 months to date from 16 July 2010 and expire on 15 December 2015.
Catchwords:
CRIMINAL LAW - Crown sentence appeal - s 53A Crimes (Sentencing Procedure) Act - aggregate sentence did not reflect principle of cumulation - individual indicative sentences not manifestly inadequate - aggregate sentence did not reflect totality of criminality - aggregate sentence manifestly inadequate - discretion not to intervene not exercised - lesser sentence than at first instance due to actual distress and anxiety
Regina (applicant) Michael Thomas Rae (respondent)
Representation:
Counsel: H Wilson (applicant) J Manuell SC (respondent) Solicitors: Solicitor for Public Prosecutions (applicant) Legal Aid Commission (respondent)
File Number(s):
2010/238174 2010/356061
Decision under appeal
Jurisdiction:
9101
Date of Decision:
2011-08-26 00:00:00
Before:
Robison DCJ
File Number(s):
2010/238174, 2010/356061
Judgment
Macfarlan JA: I agree with Button J.
Price J: I agree with Button J.
Button J: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act 1912 against a sentence imposed on 26 August 2011 by his Honour Judge Robison in the District Court of New South Wales sitting at Newcastle.
The respondent had pleaded guilty to four offences. The first was aggravated break enter and steal offence pursuant to s 112(2) of the Crimes Act1900. The circumstance of aggravation was that the respondent was in company when he committed that offence. There was an applicable maximum penalty of imprisonment for 20 years, and a standard non-parole period of imprisonment for 5 years.
The second offence was discharging a firearm with intent to inflict grievous bodily harm, pursuant to s 33A of the Crimes Act. That offence attracted a maximum penalty of imprisonment for 25 years.
The third offence was unauthorised possession of a prohibited firearm, pursuant…
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 Rae [2013] NSWCCA 9
Case
[2013] NSWCCA 9
Decision Date
CaseChat Overview and Summary
In the case of R v Rae, the appellant was convicted of several offences, and the Crown appealed the sentence imposed by the District Court. The appeal was heard in the Court of Criminal Appeal, where the appellant was represented by counsel and the Crown by a prosecutor. The central issue before the court was whether the aggregate sentence imposed by the District Court adequately reflected the principles of cumulative sentencing and the totality of the appellant's criminality.
The court considered whether the individual indicative sentences for each offence were manifestly inadequate and whether the aggregate sentence truly reflected the gravity and totality of the crimes committed. The court held that while the individual sentences were not manifestly inadequate, the aggregate sentence did not adequately reflect the principle of cumulation or the totality of the appellant's criminality. Consequently, the court found the aggregate sentence to be manifestly inadequate. The court exercised its discretion under section 53A of the Crimes (Sentencing Procedure) Act, ordering a lesser sentence than initially imposed due to the appellant's actual distress and anxiety.
The court ordered that the appellant be re-sentenced, taking into account the totality of the crimes and the principle of cumulation, and considering the appellant's distress and anxiety. The court's decision underscored the importance of ensuring that aggregate sentences are commensurate with the totality of the offender's criminal conduct and the principles of sentencing.