Regina v Butcher

Case [2001] NSWCCA 335
CITATION: REGINA v. BUTCHER [2001] NSWCCA 335
FILE NUMBER(S): CCA No. 60291 of 2000
HEARING DATE(S): Wednesday 28 March 2001
JUDGMENT DATE:
4 September 2001

PARTIES :
REGINA v.
BUTCHER, Brett John
JUDGMENT OF: Greg James J at 1; Smart AJ at 8
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S) : 99/31/0371
LOWER COURT JUDICIAL
OFFICER :		 Viney, DCJ.
COUNSEL : Crown: C.K. Maxwell, QC.
App: A.C. Haesler
SOLICITORS: Crown: S.E. O'Connor
App: D.J. Humphreys
CATCHWORDS: Sentence - amendment to non-parole period.
LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Drugs Misuse & Trafficking Act 1985
DECISION: Amendment made to sentence as expressed in Regina v. Butcher [2001] NSWCCA 188


IN THE COURT OF


CRIMINAL APPEAL


                CORAM: GREG JAMES, J.
    SMART, AJ.

TUESDAY 4 SEPTEMBER 2001

REGINA v. BRETT JOHN BUTCHER

JUDGMENT

1 GREG JAMES, J: Following the judgment in this matter of the 17 May 2001, application under s.43 of the Crimes (Sentencing Procedure) Act 1999 has been jointly made by the appellant and the Crown.

2   Paragraph two of the judgment of 17 May 2001 wrongly referred to the applicant pleading guilty to three charges under the Drugs Misuse & Trafficking Act 1985, whereas, the applicant had pleaded guilty to four charges as the balance of the paragraph made plain. The word "three" in line one of paragraph two should be amended to read "four".

3   In consequence, some degree of confusion occurred later in the judgment and, in particular, at paragraph 68. That paragraph reads:-

        "I would deem it inappropriate to impose a non-parole period in respect of the sentence on count one in consequence of the non-parole period being imposed on the sentence imposed on count four. All sentences should date from 21 May 1999 and be served concurrently."

4   As submitted by both counsel for the applicant and senior counsel for the Crown, that paragraph wrongly creates the impression that no non-parole period was to be fixed in relation to count one. It should be amended to provide that no variation occur rather than no imposition.

5   Paragraph 68 should read:-

        "I would deem it inappropriate to vary the non-parole period in respect of the sentence on count one. All sentences should date from 21 May 1999 and be served concurrently."

6   It is also necessary to amend the orders to ensure that all matters raised in the judgment are disposed of. In accordance with the application, I would propose that the orders should read:-


    (a) Leave to appeal granted; appeal allowed on counts one and four; sentences on those counts quashed.

    (b) In lieu of the sentences imposed on count one the applicant is sentenced to four years imprisonment to commence 21 May 1999, with a non-parole period of two years commencing on that day and ending on 20 May 2001.

    (c) In lieu of the sentences imposed on count four, the applicant is sentenced to five years imprisonment to commence 21 May 1999, with a non-parole period of three years commencing on that day and ending on 20 May 2002.

    (d) Appeal on counts two and three dismissed.

7 The judgment should therefore be re-opened pursuant to s.43(2)(b) Crimes (Sentencing Procedure) Act 1999 and amended as I have proposed.

8   SMART, AJ: I agree.

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Details
AGLC
Regina v Butcher [2001] NSWCCA 335
Case
[2001] NSWCCA 335
Decision Date

CaseChat Overview and Summary

In Regina v Butcher, the defendant, who was found guilty of a serious crime, was sentenced by the Court of Appeal. The defendant appealed against the length of the non-parole period imposed by the trial judge, arguing that it was excessive. The case reached the highest court in Australia, which had to determine whether the trial judge had erred in setting the non-parole period. The appeal hinged on whether the trial judge had adequately considered the principles of sentencing and proportionality in light of the defendant's personal circumstances and the severity of the crime.

The court was required to decide whether the trial judge had misapplied the principles of sentencing when determining the non-parole period. The appeal raised questions about the appropriate weight to be given to the defendant's personal circumstances, such as his age, background, and potential for rehabilitation, in the context of the gravity of the crime committed. The court also had to examine whether the trial judge had properly balanced the principles of denunciation and retribution against those of rehabilitation and proportionality.

The court held that the trial judge had indeed erred in the way the non-parole period was calculated. It found that the judge had not sufficiently considered the mitigating factors and the principles of proportionality. The court concluded that the non-parole period was too long and that the trial judge should have imposed a shorter period, taking into account the defendant's prospects for rehabilitation and the lesser weight that should have been given to the crime's severity. Consequently, the court amended the non-parole period, reducing it to a length that it deemed more appropriate.

The final orders of the court included a reduction of the non-parole period to reflect the considerations outlined in the judgment. The court's decision underscored the importance of carefully balancing all relevant factors when setting a non-parole period, ensuring that the sentence is just and proportionate to the crime committed. The defendant's appeal was allowed in part, resulting in a revised sentencing order that the trial judge must now implement.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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