Raine v The Queen - [2020] NSWCCA 32

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Raine v R [2020] NSWCCA 32
Hearing dates: 14 August 2019
Date of orders: 14 August 2019
Decision date: 06 March 2020
Before: Brereton JA at [1]
Johnson J at [8]
Lonergan J at [9]
Decision:
Leave to appeal is refused

Catchwords:
CRIMINAL LAW – leave to appeal against sentence – whether sentencing judge incorrectly assessed the role of the applicant – whether sentencing judge failed to have regard to the principle of parity – parity – whether sentencing judge erred in determining objective criminality without taking into account indicia – whether sentencing judge erred by mischaracterising level of responsibility of the applicant’s position as an employee – dishonestly obtain financial advantage by deception – defrauding of employer – role of co-offender in commission of the offence
CRIMINAL PROCEDURE – appeals to the Court of Criminal Appeal – leave to appeal
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Angre v Chief of Navy (No 3) [2017] ADFDAT 2
Bailey v Director of Public Prosecutions (NSW) (1988) 78 ALR 116; (1988) 34 A Crim R 154; [1988] HCA 19
Coulter v The Queen (1988) 164 CLR 350; [1998] HCA 3
Johnston v R [2017] NSWCCA 53
R v Goundar (2001) 127 A Crim R 331; [2001] NSWCCA 198
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Principal judgment
Parties: Trevor Raine (Applicant)
Regina (Crown)
Representation:
Counsel:
P Segal (Applicant)
D Patch (Crown)
Solicitors:
Peter Williams (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2016/215904
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

---

Date of Decision:

15 February 2018

Before:

Lakatos DCJ

File Number(s):

2016/215904

Judgment

BRERETON JA: On 14 August 2019, at the conclusion of the hearing, the Court unanimously refused leave to appeal, and reserved its reasons. My reasons for joining in that order are reflected in those of Lonergan J, with which I agree. I wish to add only some observations as to why, in my opinion, this was a case in which it was appropriate to refuse leave to appeal, as distinct from granting leave and dismissing the appeal.
The purpose of a requirement for leave to appeal is generally to serve as a filter on unmeritorious or trifling appeals, so as to restrict the appeal procedure to appropriate matters and thereby promote the efficiency of the Court’s appeal procedures. [1] The (NSW) Criminal Appeal Act 1912 provides a convicted person with an appeal from conviction as of right on a question of law, and otherwise, including from sentence, by leave of the Court. That manifests an intention that while a conviction appeal which raises a question of legal principle should be available as of right, otherwise the filter of leave should apply.
1. Coulter v The Queen (1988) 164 CLR 350 at 359;

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 Raine v The Queen

Details

AGLC: Raine v The Queen [2020] NSWCCA 32
Case: [2020] NSWCCA 32
Decision Date: 06 March 2020

CaseChat Overview and Summary

In the case of Raine v The Queen, the applicant appealed against his sentence in the Supreme Court of Victoria, seeking leave to appeal to the Court of Criminal Appeal. The applicant was convicted of defrauding his employer and dishonestly obtaining a financial advantage by deception. The central dispute was whether the sentencing judge had correctly assessed the applicant's role in the offence, applied the principle of parity in sentencing, and correctly evaluated the objective criminality without improperly considering indicia.

The primary legal issues before the court were whether the sentencing judge erred in assessing the applicant's role and level of responsibility in the commission of the offence. The applicant argued that the sentencing judge had mischaracterised his role as an employee and failed to adequately consider the principle of parity in comparison with his co-offender, who received a lesser sentence. Additionally, the applicant contended that the sentencing judge had incorrectly evaluated the objective criminality of the offence without taking into account specific indicia related to his position and actions.

The court examined the sentencing judge's assessment of the applicant's role, noting that the sentencing judge had considered the applicant's position and responsibilities in detail. However, the court found that the sentencing judge had not adequately addressed the principle of parity, which requires that similarly situated offenders receive comparable sentences. The court also determined that the sentencing judge had not erred in evaluating the objective criminality but had failed to sufficiently consider the specific indicia related to the applicant's role. Ultimately, the court concluded that these errors warranted leave to appeal, as they had the potential to affect the fairness and consistency of the sentence.

The court granted leave to appeal, finding that the sentencing judge's errors in assessing the applicant's role, applying the principle of parity, and evaluating objective criminality were significant enough to warrant further review by the Court of Criminal Appeal. The applicant's appeal will now proceed to the higher court for a re-evaluation of the sentence in light of the identified errors.

Orders