Rae v R

Case [2019] NSWCCA 284 11 December 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rae v R [2019] NSWCCA 284
Hearing dates: 1 November 2019
Date of orders: 11 December 2019
Decision date: 11 December 2019
Before: Macfarlan JA at [1]
Harrison J at [2]
Cavanagh J at [48]
Decision:
(1)   Grant leave to appeal.
(2)   Allow the appeal.
(3)   Quash the sentence imposed upon Mr Rae by Ellis DCJ on 17 August 2017.
(4)   Remit the matter to Ellis DCJ for sentence, or another judge of the District Court if his Honour is not available.
(5)   Direct that the matter be placed in the District Court arraignments list on 20 December 2019.

Catchwords: CRIME – appeal – appeal against sentence – where applicant pleaded guilty to being an accessory after the fact to aggravated break, enter and steal – where applicant sentenced to a term of 4 years and 8 months imprisonment with a non-parole period of 3 years – whether miscarriage of justice arose because of omission by applicant’s legal representatives to place evidence of applicant’s history of mental illness before the District Court – where miscarriage of justice arose because sentencing judge did not have relevant evidence before him – appeal allowed – whether matter should be remitted for sentence
Legislation Cited: Crimes Act 1900 (NSW), s 112(2)
Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited: Alkhair v R [2016] NSWCCA 4
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26
Goodwin v R (1990) 51 A Crim R 328
Many v R (1990) 51 A Crim R 54
Pym v R [2014] NSWCCA 182
R v Abbott (1985) 17 A Crim R 355
R v Abou-Chabake [2004] NSWCCA 356
R v Diab [2005] NSWCCA 64
R v Fordham (1997) 98 A Crim R 359
R v Hemsley [2004] NSWCCA 228
Ratten v The Queen (1974) 131 CLR 510
Category: Principal judgment
Parties: Benjamin Thomas Rae (Applicant)
Crown (Respondent)
Representation:
Counsel:
J Paingakulam (Applicant)
B Baker (Respondent)
Solicitors:
Legal Aid Commission of NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2017/18887
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

17 August 2018

Before:

Ellis DCJ

File Number(s):

2017/18887

Judgment

MACFARLAN JA: I agree with Harrison J.
HARRISON J: Benjamin Thomas Rae pleaded guilty on 11 April 2018 in the Newcastle Local Court to one count of being an accessory after the fact to an aggravated break, enter and steal offence pursuant to s 112(2) of the Crimes Act 1900. On 17 August 2018, Mr Rae was re-arraigned before Ellis DCJ in the District Court at Newcastle on an indictment and maintained his plea. He was then sentenced to a term of 4 years and 6 months imprisonment with a non-parole period of 3 years commencing on 4 July 2018 and expiring on 3 July 2021. The maximum penalty…

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 Rae v R

Details

AGLC: Rae v R [2019] NSWCCA 284
Case: [2019] NSWCCA 284
Decision Date: 11 December 2019

CaseChat Overview and Summary

The appeal in Rae v R concerned a sentence imposed on the applicant, Rae, who had pleaded guilty to being an accessory after the fact to an aggravated break, enter and steal. The case was heard in the High Court of Australia. Rae was sentenced to a term of 4 years and 8 months imprisonment, with a non-parole period of 3 years. The primary issue before the Court was whether a miscarriage of justice occurred due to the omission by Rae's legal representatives to present evidence of Rae's history of mental illness to the sentencing judge in the District Court. The absence of this relevant evidence led to the contention that the sentencing judge was not fully informed about Rae's circumstances, thereby potentially affecting the sentence imposed.

The High Court examined whether the failure to present the mental health evidence constituted a miscarriage of justice. It was determined that the sentencing judge did not have the benefit of this critical information, which could have influenced the assessment of Rae's culpability and the appropriate sentence. Given that the omission of such significant evidence could have led to an unjust outcome, the Court found that a miscarriage of justice had indeed occurred. Consequently, the appeal was allowed on the basis that the absence of the mental health evidence led to an unfair sentencing process.

The Court concluded that the matter should be remitted to the District Court for resentencing, providing an opportunity for the sentencing judge to consider the full context of Rae's history, including his mental illness, in determining an appropriate sentence. The High Court's decision underscored the importance of ensuring that all relevant evidence is presented in criminal sentencing to uphold the principles of justice and fairness.

Orders