R v Walden - [2001] NSWCCA 365

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Walden [2001] NSWCCA 365 revised - 8/10/2001

FILE NUMBER(S):
60259/01

HEARING DATE(S): 14/9/01

JUDGMENT DATE: 14/09/2001

PARTIES:
Regina
Brian Joseph Walden

JUDGMENT OF: Sully J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/61/0072, 00/61/0011

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL:
G E Smith (Crown)
P J D Hamill (Applicant)

SOLICITORS:
S E O'Connor (Crown)

CATCHWORDS:
Sentencing - appeal against severity (2)- obtain money by deception -receiving (2) - extent of loss to owners/insurers not established at trial - alleged failure of trial judge to consider principle of totality.

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Leave to appeal granted. Appeal dismissed.

JUDGMENT:

- 6 -

IN THE COURT OF

CRIMINAL APPEAL

60259/01

SULLY J
CARRUTHERS AJ

Friday 14 September 2001

Regina v Brian Joseph Walden

JUDGMENT

SULLY J: I will ask Mr Acting Justice Carruthers to deliver judgment.
CARRUTHERS AJ: Brian Joseph Walden seeks leave to appeal against sentences imposed upon him by his Honour Judge Gibson QC at the Bathurst District Court on 23 April 2001 when the applicant pleaded guilty to an indictment containing four counts. The first and third counts charged offences of obtain money by deception under s 178BA(1) of the Crimes Act 1900, which carries a maximum penalty of 5 years imprisonment.
The second count was under s 188 of the Act, a count of receiving stolen property, which offence carries a maximum penalty of 10 years imprisonment.
The fourth count was one of receiving goods out of New South Wales under s 189A (1) of the Act, which offence carries a maximum penalty of 10 years imprisonment.
The offences were committed over the period between 4 December 1996 and 27 October 1998.
With regard to counts 1 and 3, his Honour sentenced the applicant on each count to a fixed term of 15 months imprisonment to commence on 23 April 2001 and to expire on 22 July 2002.
With respect to count 2, his Honour sentenced the applicant to 29 months imprisonment with a non-parole period of 2 years to commence on 23 April 2001 and to expire on 22 April 2003.
With respect to count 4, his Honour sentenced the applicant to 32 months imprisonment with a non-parole period of 2 years to commence on 23 April 2001 and to expire on 22 April 2003.
Thus, the effective sentence overall is that of 32 months imprisonment with a non-parole period of two years, his Honour taking the view that there were no special circumstances.
The applicant was born on 8 December 1952. He is married with two children, one of whom, unfortunately, has a very serious permanent illness.
His criminal record dates back to 6 April 1970. Two matters in that prior criminal record merit attention. On 29 June 1994, at the Sydney District Court, the applicant was convicted of receiving stolen property outside New South Wales. Sentence was deferred on his entering a recognisance, self…

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 Walden

Details

AGLC: R v Walden [2001] NSWCCA 365
Case: [2001] NSWCCA 365
Decision Date: 14 September 2001

CaseChat Overview and Summary

In the case of R v Walden, the appellant, Walden, was convicted of multiple counts of obtaining money by deception and receiving property obtained by deception. Walden appealed against the severity of his sentence, arguing that the trial judge failed to consider the principle of totality and did not establish the extent of the loss to the owners or insurers at the time of sentencing. The appeal was heard in the Court of Appeal, which needed to determine whether the trial judge erred in the application of sentencing principles and whether the failure to establish the extent of the loss was a significant error that warranted a reduction in the sentence.

The primary legal issues before the court were whether the trial judge properly considered the principle of totality when imposing the sentence and whether the failure to establish the extent of the loss to the owners or insurers constituted a significant error. The court had to examine the sentencing remarks made by the trial judge and assess whether they appropriately balanced the severity of the offences and the appellant's culpability. Additionally, the court needed to consider whether the omission of the loss details was sufficiently significant to affect the fairness of the sentence.

The Court of Appeal held that the trial judge did consider the principle of totality in imposing the sentence, despite not explicitly stating it. The court found that the remarks sufficiently reflected the need to avoid excessive punishment for multiple offences. However, the court did find that the trial judge's failure to establish the extent of the loss to the owners or insurers was a significant error. The court noted that this omission could have influenced the sentence unduly. Despite this error, the court determined that the sentence was not unjustifiably severe and did not warrant a reduction. The appeal was ultimately dismissed.

No further orders were made by the court, affirming the original sentence imposed by the trial judge. The Court of Appeal concluded that the sentence was appropriate given the circumstances and the principle of totality, despite the error in not establishing the extent of the loss.

Orders