R v White - [2018] NSWCCA 238

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v White [2018] NSWCCA 238
Hearing dates: 26 March 2018
Date of orders: 26 March 2018
Decision date: 24 October 2018
Before: Bathurst CJ at [1]; Schmidt J at [14]; Hamill J at [15]
Decision:
(1)   Grant the Crown leave to amend the notice of appeal by adding the additional ground in terms articulated by the Crown earlier during the hearing.

(2)   Allow the appeal.
(3)   Remit the sentencing proceedings to the District Court for [de]termination in accordance with law.
Catchwords: SENTENCING – Sentencing procedure – Procedural fairness – Crown representative not heard on appropriateness of sentence imposed by sentencing judge – whether denial of procedural fairness to the Crown
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Nil
Category: Principal judgment
Parties: The Crown (appellant)
Louis White (respondent)
Representation:
Counsel:
N Adams (appellant)
D E Ozen (respondent)
Solicitors:
Solicitor for Public Prosecutions (appellant)
Longton Legal Pty Ltd (respondent)

File Number(s): 2015/119742
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

14 December 2017

Before:

Conlon DCJ

File Number(s):

2015/119742

Judgment

BATHURST CJ: Mr Louis White (the respondent) pleaded guilty on 22 March 2016 to the charge of wounding Mr Patrick Thomas with intent to cause grievous bodily harm. On 14 December 2017, the sentencing judge imposed a sentence of two years imprisonment and suspended the sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), as in force at the time.
The Crown appealed pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW). The sole ground of appeal was that the sentence was manifestly inadequate.
During the hearing of the appeal, it emerged that the real issue was whether the Crown had been denied procedural fairness in the sentencing proceedings. The Crown was granted leave to amend its grounds of appeal to add a ground raising this issue and the Court made the following orders:

“(1)   Grant the Crown leave to amend the notice of appeal by adding the additional ground in terms articulated by the Crown earlier during the hearing.
(2)   Allow the appeal.
(3)   Remit the sentencing proceedings to the District Court for [de]termination in accordance with law.”

These are my reasons for joining in these orders.
The history of the matter was as follows. As I have noted, on 22 March 2016, the respondent pleaded guilty to the charge in question. There was thereafter significant delay in the finalisation of the matter, and it was not listed for a sentencing hearing until 25 November 2016, some eight months after the plea of guilty was entered.
On that day, the respondent indicated his intention to make an application to withdraw the plea of guilty. That application was not heard for another ten months until 11 and 12 September 2017. The application was refused on 21 September 2017.
During the…

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 White

Details

AGLC: R v White [2018] NSWCCA 238
Case: [2018] NSWCCA 238
Decision Date: 24 October 2018

CaseChat Overview and Summary

The case of R v White involved the defendant, White, who was before the court for sentencing after being convicted of a serious crime. The central issue before the court was whether the sentencing judge had properly considered the submissions from the Crown representative in determining the appropriate sentence for White. The Crown argued that it had not been heard on the matter of sentencing, and that this omission constituted a denial of procedural fairness. The High Court was tasked with determining whether this constituted a breach of the principles of natural justice and fairness.

The legal issues that the court had to address were primarily concerned with the principles of procedural fairness in the context of sentencing. Specifically, the court needed to examine whether the Crown's right to be heard on matters of sentencing, as guaranteed by the common law, had been upheld. The Crown's argument hinged on the assertion that it was denied an opportunity to make representations regarding the appropriateness of the sentence, which in turn meant that the sentencing judge did not have the benefit of all relevant information before making the decision. The court was also required to consider whether the failure to allow the Crown to be heard constituted a fundamental error that warranted the sentence to be quashed.

In delivering the judgment, the court found that the Crown's submissions had indeed been overlooked by the sentencing judge, which constituted a breach of the principles of procedural fairness. The court emphasised the importance of ensuring that all parties have an opportunity to be heard on matters that directly affect their interests, particularly in the context of sentencing where the consequences can be significant. The court held that the failure to allow the Crown to be heard on the appropriateness of the sentence rendered the sentencing process unfair and thus invalid. Consequently, the sentence imposed by the sentencing judge was quashed, and the matter was remitted back to the lower court for re-sentencing.

The final orders of the court were that the sentence imposed on White be quashed and the matter be remitted to the sentencing court for re-sentencing. The court made it clear that the re-sentencing process must ensure that the Crown's right to be heard on the appropriateness of the sentence is fully respected. This decision underscores the importance of procedural fairness in criminal sentencing and the need for courts to strictly adhere to the principles of natural justice.

Orders