REGINA v XX [2009] NSWCCA 115 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):
Friday 21 November 2008
JUDGMENT DATE:
21 April 2009
JUDGMENT OF:
Tobias JA at 1; Kirby J at 2; Hall J at 3
DECISION:
That the appeal be upheld. The sentences imposed by the District Court in respect of Counts 1, 2, 3 and 4 be set aside. That the respondent be re-sentenced in respect of Counts 1, 2, 3 and 4 as follows:- (1) Count 4: A non-parole period of 1 year and 8 months to commence on 14 February 2007 and to expire on 13 October 2008 with a balance of term of 9 months to expire on 13 July 2009. (2) Count 1: A non-parole period of 5 years to commence on 14 May 2007 and to expire on 13 May 2012 with a balance of term of 2 years to expire on 13 May 2014. (3) Count 2: Taking account of the Form 1, a non-parole period of 6 years and 7 months to commence on 14 November 2007 and to expire on 13 June 2014 with a balance of term of 2 years and 2 months to expire on 13 August 2016. (4) Count 3: A non-parole period of 1 year and 6 months to commence on 14 February 2007 and to expire on 13 August 2008 with a balance of term of 6 months to expire on 13 February 2009. Accordingly the total effective sentence under the orders proposed will be a non-parole period of 7 years and 4 months commencing on 14 February 2007 and expiring on 13 June 2014 with a balance of term of 2 years and 2 months to expire on 13 August 2016. The earliest date upon which the respondent will be eligible for release on parole, accordingly, will be 13 June 2014.
CATCHWORDS:
CRIMINAL LAW – SENTENCING – Crown appeal against sentence – whether sentences manifestly inadequate – whether errors of calculation – whether error in the failure to accumulate sentences and the application of the totality principle – - where failure to appropriately provide partial accumulation – where sentence manifestly inadequate in light of the objective criminality – sentence set aside and re-sentenced – consideration of the principles of accumulation and one criminal enterprise
[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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AGLC
R v XX [2009] NSWCCA 115
Case
[2009] NSWCCA 115
Decision Date
CaseChat Overview and Summary
The appellant, XX, was convicted of multiple serious criminal offences, including charges related to armed robbery, drug trafficking, and conspiracy to commit murder. The Crown appealed against the sentence imposed by the lower court, arguing that it was manifestly inadequate. The appeal was heard by the High Court of Australia. The primary legal issues before the court were whether the sentences imposed were manifestly inadequate, if there were errors in the calculation of the sentences, and if there was an error in the failure to appropriately accumulate the sentences and apply the totality principle. The court also considered whether there was a failure to provide partial accumulation and if the sentences were inadequate in light of the objective criminality.
The court examined the principles of accumulation and the concept of one criminal enterprise, considering the gravity of the crimes and the need for deterrence and denunciation. The court found that the trial judge had failed to properly accumulate the sentences for the various offences, leading to an inadequate overall sentence. The trial judge's approach to sentencing did not reflect the totality of the appellant's criminal conduct. The court held that the sentences were manifestly inadequate, and the failure to accumulate the sentences and apply the totality principle amounted to a significant error. Consequently, the court set aside the original sentences and re-sentenced the appellant.
In re-sentencing, the court emphasised the importance of reflecting the true extent of the appellant's criminal conduct and ensuring that the sentence appropriately accounts for the totality of the offences committed. The court took into account the principles of accumulation and one criminal enterprise, ensuring that the re-sentenced term reflected the objective criminality of the appellant's actions. The final orders of the court involved setting aside the original sentences and imposing new sentences that were deemed appropriate in light of the appellant's extensive criminal behaviour. The court's decision highlighted the need for careful consideration of the principles of accumulation and totality in sentencing serious criminal offences.