R v Sonter - [2005] NSWCCA 458

CITATION:
R v Sonter [2005] NSWCCA 458

HEARING DATE(S): 6 December 2005

JUDGMENT DATE:

6 December 2005

JUDGMENT OF:
Grove J at 1; Studdert J at 31; Whealy J at 32

DECISION:
APPEAL ALLOWED IN PART; SENTENCE VARIED

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - SENTENCE - MULTIPLE OFFENCES - ERRONEOUS DATE IN DOCUMENTATION SUPPLIED TO JUDGE - CONSEQUENT REDUCED PROPORTION OF PAROLE TO CUSTODIAL PERIOD - ADJUSTMENT APPROPRIATE - OTHERWISE NO SPECIAL MATTER OF PRINCIPLE

LEGISLATION CITED:

s 21A Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Blair [2005] NSWCCA 78
R v Simpson 2001 53 NSWLR 704
R v Veen (No 2) 1988 164 CLR 465
R v Williams [2004] NSWCCA 76

PARTIES:
Regina v Michael John Sonter

FILE NUMBER(S):
CCA 2005/1457

COUNSEL:
T. Game SC (Applicant)
J. Dwyer (Respondent/Crown)

SOLICITORS:
C. Jeffreys, Jeffreys & Associates (Applicant)
S. Kavanagh (DPP)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/21/1094

LOWER COURT JUDICIAL OFFICER:
Geraghty DCJ

2005/1457

GROVE J
STUDDERT J
WHEALY J
6 December 2005

REGINA v MICHAEL JOHN SONTER

Judgment

1 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Geraghty DCJ at Penrith District Court. The applicant was committed for sentence from the Local Court following pleas of guilty to counts of being armed with intent to commit an indictable offence, for which a prescribed maximum penalty of seven years imprisonment was applicable, and an ongoing supply of prohibited drug, methylamphetamine, for which imprisonment for twenty years and possible fine is prescribed.

2 His Honour was asked to take into account pursuant to the Form 1 procedure a further eleven charges. These consisted of seven further offences of supplying methylamphetamine which took place between 10 July and 5 November 2003, possessing a shortened firearm, possessing ammunition and not keeping a firearm safe, on 3 July 2003, and possession of cannabis on 3 July 2003.

3 It should be noted that the Form 1 signed by the applicant has what would appear to be typing errors in that the stated date of the offences of not keeping the firearm safe and possession of prohibited drug, cannabis, is 3 July 2004 whereas it should read and be taken to read 3 July 2003.

4 It is conceivable, I would say likely, that this mistake is the source of an erroneous observation by his Honour upon which reliance is placed by the applicant in support of his challenge to sentence. There is not any apparent connection, in a relevant sense, between the two principal offences charged. The facts were placed before the sentencing court in an agreed statement.

5 Senior counsel for the applicant has, with his usual candour, acknowledged that the seriousness of the offending is not disputed.

6 The first count had its origin on 22 June 2003 when the applicant sought the assistance of one Coleman whose motor vehicle he wished to use in the commission of the robbery of the payroll of a particular business. On 25…

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 Sonter

Details

AGLC: R v Sonter [2005] NSWCCA 458
Case: [2005] NSWCCA 458
Decision Date: 6 December 2005

CaseChat Overview and Summary

In the case of R v Sonter, the respondent was convicted of multiple serious criminal offences and was sentenced to a total period of imprisonment, inclusive of a custodial period and a non-custodial period of parole. An error was found in the documentation provided to the sentencing judge, which indicated an incorrect date, resulting in an underestimation of the proportion of the parole period relative to the custodial period. The respondent appealed against his sentence, arguing that the error meant that the sentence was not properly balanced and should be set aside.

The central legal issues before the court were whether the error in the documentation was significant enough to warrant an adjustment to the sentence, and if so, what the appropriate adjustment should be. The court had to consider whether the error materially affected the sentence, and whether correcting the error would result in a more appropriate and balanced sentence. The court also had to weigh the principle of finality in sentencing against the need to ensure that sentences are fair and proportionate.

The court held that the error was significant and materially affected the sentence, as it led to an underestimation of the proportion of the parole period. The court found that adjusting the sentence to correct the error was appropriate, as it would result in a more balanced and proportionate sentence. The court emphasised that while the principle of finality in sentencing is important, it must be balanced against the need for justice and fairness. The court concluded that the adjustment was necessary to achieve a just outcome and to ensure that the sentence was not disproportionate. The court ordered that the sentence be adjusted to correct the error and to ensure that the proportion of the parole period was appropriately balanced with the custodial period.

The court's final order was that the sentence be adjusted to correct the error in the documentation and to ensure that the proportion of the parole period was appropriately balanced with the custodial period. The court did not set aside the sentence entirely but instead adjusted it to achieve a just outcome. The court's decision highlights the importance of accurate documentation in sentencing and the need to ensure that sentences are fair and proportionate.

Orders