R v Sundar - [2005] NSWCCA 93

CITATION:
Regina v Sundar [2005] NSWCCA 93
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15 March 2005

JUDGMENT DATE:

15 March 2005

JUDGMENT OF:
Tobias JA at 1; Wood CJ at CL at 36; Buddin J at 37

DECISION:
(1) Leave to appeal granted; (2) Appeal allowed and the sentence imposed on the applicant by Judge Maguire on 28 June 2004 be quashed; (3) In lieu of the sentence imposed by Judge Maguire, the applicant be sentenced to a term of three years imprisonment to commence on 28 March 2003 and expire on 27 March 2006 with a non-parole period of two years to commence on 28 March 2003 and expire on 27 March 2005; (4) Direct that the applicant be released to parole on the expiry of the non parole period on 27 March 2005

CATCHWORDS:
CRIMINAL LAW - Sentencing - Appeal against severity of sentence - Application of guideline decision in R v Henry (1999) 46 NSWLR 346 - Discount for early plea of guilty - Significance of utilitarian value of plea - Discount for admissions and assistance to authorities - Assessment of objective seriousness of offence

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
R v Henry (1999) 46 NSWLR 346
R v Hemsley [2004] NSWCCA 228
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Dib [2003] NSWCCA 117
R v SY & Anor [2003] NSWCCA 291
R v Ellis (1986) 6 NSWLR 603

PARTIES:
Regina
Jason Abhinay Sundar

FILE NUMBER(S):
CCA 2005/98

COUNSEL:
A: A. Frances
R: J Bennett SC

SOLICITORS:
A: S O'Connor - Legal Aid Commission
R: S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 03/21/3278

LOWER COURT JUDICIAL OFFICER:
Maguire J

CCA 2005/98

TOBIAS JA
WOOD CJ at CL
BUDDIN J
Tuesday 15 March 2005

REGINA v JASON ABHINAY SUNDAR

Judgment

1 TOBIAS JA: On 10 March 2004 Jason Abhinay Sundar (the applicant) pleaded guilty to the charge that on 23 January 2003 at Cabramatta in the State of New South Wales, he did rob Rowan Pettigrew of his Health Care Card the property of Rowan Pettigrew in circumstances of aggravation, namely, at the time of the robbery he did use corporal violence on Rowan Pettigrew. The charge was preferred pursuant to s 95(2)(a) of the Crimes Act 1900 and carried a maximum penalty of 20 years' imprisonment.

2 The sentencing judge, Judge Maguire, sentenced the applicant on 28 June 2004 to a term of five years imprisonment to commence on 28 March 2003 and expire on 27 March 2008. His Honour set a non-parole period of three years to commence on the same date and to expire on 27 March 2006. It is against that sentence that the applicant seeks leave to appeal to this Court.

The facts

3 A statement of facts was tendered before the sentencing judge without objection and is…

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 Sundar

Details

AGLC: R v Sundar [2005] NSWCCA 93
Case: [2005] NSWCCA 93
Decision Date: 15 March 2005

CaseChat Overview and Summary

The defendant in this case, Sundar, was convicted of a crime and appealed against the severity of the sentence imposed. Sundar's appeal was heard in the NSW Court of Criminal Appeal. The primary issue before the court was whether the trial judge had erred in assessing the appropriate discount to be applied to the sentence due to Sundar's early plea of guilty, admissions, and assistance to authorities.

The court considered the significance of the utilitarian value of Sundar's early plea, which could potentially mitigate the sentence. It also examined whether the trial judge had correctly assessed the objective seriousness of the offence and applied the correct discount for admissions and assistance. The court noted that while an early plea of guilty is generally deserving of a discount, the extent of the discount must be determined based on the specific circumstances of each case. The court held that the trial judge had appropriately considered these factors and had not erred in the discount applied.

In conclusion, the court found that the trial judge had not erred in the assessment of the appropriate discount for Sundar's early plea of guilty, admissions, and assistance to authorities. The appeal was therefore dismissed, and the original sentence was upheld.

Orders