Regina v Anderson - [2001] NSWCCA 115

CITATION: REGINA v. ANDERSON [2001] NSWCCA 115

FILE NUMBER(S): CCA No. 60305 of 2000

HEARING DATE(S): Friday 30 March 2001

JUDGMENT DATE:
30 March 2001

PARTIES :

REGINA v.
ANDERSON, David Frederick

JUDGMENT OF: Wood CJ at CL at 1; Greg James J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/1228; 99/21/1230

LOWER COURT JUDICIAL
OFFICER : O'Reilly, DCJ.

COUNSEL : Crown: M.C. Marien
App: In person

SOLICITORS: Crown: S.E. O'Connor
App: In person

CATCHWORDS: Criminal law - sentence - appeal - failure to have regard to period in custody bail refused - otherwise no matter of principle - sentences and non-parole period backdated.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Ponfield & Ors [1999] NSWCCA 435
Pearce (1988) 194 CLR 610

DECISION: Application for leave to appeal granted; appeal allowed; sentences and non-parole periods varied so that all sentences and non-parole periods are to commence on 21.2.00 and in each case to expire 45 days earlier than stipulated by O'Reilly, DCJ.

IN THE COURT OF

CRIMINAL APPEAL

No. 60305 of 2000

CORAM: WOOD, CJ. at CL.

FRIDAY 30 MARCH 2001

REGINA v. DAVID FREDERICK ANDERSON

JUDGMENT

1 WOOD, CJ. at CL: I will ask Greg James, J. to deliver the first judgment.

2 GREG JAMES, J: This is an application for leave to appeal against sentences imposed by his Honour Judge O'Reilly, QC. in the District Court of New South Wales in consequence of the applicant having been found guilty by the verdict of a jury on a charge of break, enter and steal and his having pleaded guilty to two counts; one of larceny and the other of detain for advantage, an offence under s.90A of the Crimes Act 1900. The maximum penalty for the crime of break, enter and steal is imprisonment for 14 years. The maximum penalty for larceny is five years. The maximum penalty for the crime of detain for advantage in circumstances where the victim was not injured is 14 years.

3 In addition, the applicant asked there be taken into account two offences on a Form 1, viz., possession of a prohibited drug and entering enclosed lands without lawful excuse.

4 In respect of those crimes, his Honour imposed sentences of three years and six months to commence on 6 April 2000 and to expire on 5 October 2003 by way of a fixed term in respect of the first matter. On the second matter his Honour imposed on the first count a fixed term of two years and six months to commence on the same date as that provided for the sentence on the first matter. On the third count his Honour passed a sentence of seven years imprisonment to commence on the same commencement date, to expire on 5 April 2007.

5 In respect of those sentences his Honour imposed a non-parole period of five years and two months to commence on 6 April 2000 and to expire…

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 Regina v Anderson

Details

AGLC: Regina v Anderson [2001] NSWCCA 115
Case: [2001] NSWCCA 115
Decision Date: 30 March 2001

CaseChat Overview and Summary

Regina v Anderson was heard in the Court of Criminal Appeal. The appellant, Anderson, was convicted and sentenced for various criminal offences. The appeal centred on the calculation of his sentence and non-parole period. Anderson argued that the primary judge should have accounted for the time he spent in custody before his trial when calculating his sentence. The appeal focused on whether the trial judge's failure to consider this time warranted a new sentencing hearing or if the issue was otherwise of no substantial principle.

The primary legal issue was whether the trial judge's omission to consider the period of custody prior to sentencing constituted a significant error. The court had to determine if this error was material and, if so, whether it warranted a new sentencing hearing or if it could be rectified through the backdating of the sentence and non-parole period. The appeal also examined the scope of the court's discretion in adjusting sentences to reflect the time already served by the defendant.

The Court of Criminal Appeal held that the trial judge's failure to consider the time spent in custody did not constitute a significant error. The court found that the error was not of such a nature that it warranted a new sentencing hearing. Instead, the court had the authority to backdate the sentence and non-parole period to account for the time already served by Anderson. The appeal was dismissed, and the original sentence was adjusted to reflect the time spent in custody prior to the trial.

Orders