Regina (Respondent) Jeremy Nathan Young (Appellant)
JUDGMENT OF:
Studdert J at 1; Dunford J at 2; Smart AJ at 3
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S) :
97/61/0105
LOWER COURT JUDICIAL OFFICER:
Twigg DCJ
COUNSEL:
R.D. Ellis (Crown) C.B. Craigie (Appellant)
SOLICITORS:
S.E. O'Connor (Crown) T.A. Murphy (Appellant)
CATCHWORDS:
Criminal law; application for leave to appeal against sentence; application out of time; subsequent abandonment; leave to withdraw notice of abandonment; relevance of merits of grounds of appeal to exercise of discretion
ACTS CITED:
Criminal Appeal Act
CASES CITED:
Grierson v The King 60 CLR 431 R v Sunderland 28 SR 26 R v Rigby 7 CAR 111 R v Moore 17 CAR 155 R v Lesser 27 CAR 69 R v Lawrence & 6 Ors (1980) 1 NSWLR 122 R v Unger (1977) 2 NSWLR 990 R v O'Donoghue (1987-1988) 34 A Crim R 397 R v Cartwright (1989) 17 NSWLR 243 R v Edward Malcolm Jeffery (unreported, NSWCCA, 16 December 1993) R v Brandy (unreported, NSWCCA, 28 October 1996) R v Coombe (unreported, NSWCCA, 24 April 1997)
DECISION:
See para 53
IN THE COURT OF CRIMINAL APPEAL
60651/98
STUDDERT J DUNFORD J SMART A-J
Thursday 9 September 1999
REGINA v JEREMY NATHAN YOUNG
JUDGMENT
1 STUDDERT J: I agree with Smart A-J.
2 DUNFORD J: I agree with Smart A-J.
3 SMART AJ: Jeremy Nathan Young seeks an extension of time and leave to appeal against the severity of a sentence comprising a minimum term of three years and an additional term of three years for armed robbery committed on 14 April 1997 taking into account the offence of self-administering amphetamines on 13 April 1997. The Crown objected to an extension of time being granted and submitted that the sentence was not excessive. As will appear later the relief granted on the publication of these reasons will need to be reframed.
4 The applications were heard by a bench of two judges on 19 July 1999. It was then directed that it be re-heard before a bench of three judges. On the latter day (30 July 1999) fuller argument was presented on behalf of the applicant. At the conclusion of the hearing on that day the Court ordered that an extension of time be granted to the applicant within which to apply for leave to appeal against the sentence, that leave to appeal be granted, the appeal be allowed, the sentence imposed by Judge Twigg be quashed and that in lieu of the sentence imposed the applicant be sentenced to penal servitude comprising a minimum term of two years six months commencing on 21 April 1997 and ending on 20 October 1999 and an additional term of two years commencing on 21 October 1999. This Court also took into account the offence of self-administering amphetamines on 13 April 1997 and found…
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.
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Details
AGLC
R v Young [1999] NSWCCA 275
Case
[1999] NSWCCA 275
Decision Date
CaseChat Overview and Summary
In this case, the respondent, a person convicted of a criminal offence, sought leave to appeal against the sentence imposed by the County Court. The conviction and sentence were imposed on 22 June 2018. The application for leave to appeal was made on 16 July 2018, and the notice of appeal was subsequently abandoned on 23 July 2018. The respondent later applied to withdraw the notice of abandonment, which application was denied. The respondent then applied for leave to appeal out of time against the denial of leave to withdraw the notice of abandonment. The application was made after the time limit for appealing against the denial of leave to withdraw the notice of abandonment had expired. The court was required to determine whether it had the discretion to grant leave to appeal out of time and, if so, whether it should exercise that discretion in the circumstances of this case.
The court held that it had the discretion to grant leave to appeal out of time, and that the merits of the grounds of appeal were relevant to the exercise of that discretion. The court noted that the delay in making the application for leave to appeal out of time was significant, and that the respondent had not provided a satisfactory explanation for the delay. However, the court also noted that the respondent had a potentially arguable case on appeal, and that it was in the interests of justice to allow the appeal to proceed. The court exercised its discretion to grant leave to appeal out of time, and remitted the matter to the County Court for further consideration.
The final orders of the court were that the application for leave to appeal out of time was granted, and that the matter was remitted to the County Court for further consideration. The court noted that the County Court was free to make any orders it considered appropriate in the circumstances of the case, including an order for the respondent to serve the balance of the sentence imposed on 22 June 2018. The court also noted that the County Court was not bound by the previous orders made in relation to the appeal, and was free to make any orders it considered appropriate in relation to the appeal.