Regina v Darby - [2011] NSWCCA 52

Court of Criminal Appeal

New South Wales

Case Title: REGINA v DARBY

Medium Neutral Citation: [2011] NSWCCA 52

Hearing Date(s): 22 March 2011

Decision Date: 01 April 2011

Jurisdiction:

Before:
McCLELLAN CJ at CL at 1
BLANCH J at 2
HOEBEN J at 3

Decision:
Appeal dismissed

Catchwords:
CRIMINAL LAW - appeal against sentence - appeal by Crown - ss68A of the Crimes (Appeal and Review) Act 2001 - misunderstanding by sentencing judge of non-custodial and non-fulltime custodial sentence options - sentence passed shortly after commencement of Crimes (Sentencing Legislation) Amendment (Intensive Correction orders) Act 2010 - need to re-sentence - application of principles relevant to re-sentencing - rehabilitation prospects - finding by sentencing judge that respondent "at the crossroads" - matters to be taken into account when assessing objective seriousness of part played by respondent in the commission of the offence - imposition of same sentence as sentencing judge.

Legislation Cited:
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Criminal Appeal Act 1912
Crimes (Sentencing legislation) Amendment (Intensive Correction Orders) Act 2010
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
R v Cicekdag [2004] NSWCCA 357
R v Douar [2005] 159 A Crim R 154
Regina v Hamieh [2010] NSWCCA 189
R v Henry [1999] 46 NSWLR 346
R v JW [2010] NSWCCA 49
R v Osenkowski (1982) 30 SASR 212 at 212-213, (1982) 5 A Crim R 394 at 394
R v Way [2004] NSWCCA 131, (2004) 60 NSWLR 168
Regina v Zamagias [2002] NSWCCA 17

Texts Cited:

Category: Principal judgment

Parties:
Regina - Appellant
Kelly Anne Darby - Respondent

Representation

- Counsel:
Counsel:
Mr P Ingram SC - Crown
Ms R Burgess - Respondent

- Solicitors:
Solicitors:
S Kavanagh, Solicitor for Public Prosecutions - Appellant Crown
SE O'Connor, Legal Aid Commission - Respondent

File number(s): 2009/326370

Decision Under Appeal

- Court / Tribunal:

- Before: Madgwick QC ADCJ

- Date of Decision: 24 November 2010

- Citation:

- Court File Number(s) 2009/326370

Publication Restriction:

Judgment

McCLELLAN CJ at CL: I agree with Hoeben J.

BLANCH J: I agree with Hoeben J.

HOEBEN J:

Offence and sentence

On 13 September 2010 the respondent pleaded guilty to an alternative count on indictment that on 14 March 2009 at Tomago she assaulted Robert Stojkovski with intent to rob him. This is an offence contrary to s94 of the Crimes Act 1900 for which there was a prescribed maximum penalty of imprisonment for 14 years.

The respondent also requested the sentencing judge to take into account on a Form 1 document an offence of doing an act with intent to pervert the course of justice contrary to s319 of the Crimes Act 1900.

On 24 November 2010 his Honour sentenced the applicant to the performance of 500 hours community service work (pursuant to s8 of the Crimes (Sentencing Procedure) Act 1999, to accept the supervision of the Probation and Parole Service and to undergo a development plan to be devised by that Service, which was to include assistance in relation…

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 Darby

Details

AGLC: Regina v Darby [2011] NSWCCA 52
Case: [2011] NSWCCA 52
Decision Date: 01 April 2011

CaseChat Overview and Summary

The case of Regina v Darby involved an appeal by the Crown against the sentence imposed by a sentencing judge on the respondent, Darby. The dispute centred on the misunderstanding by the sentencing judge of non-custodial and non-fulltime custodial sentence options, particularly in light of the recent commencement of the Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010. The appeal was brought under section 68A of the Crimes (Appeal and Review) Act 2001.

The legal issues before the court included whether the sentencing judge had erred in imposing a sentence that did not align with the available sentencing options and whether the court should re-sentence the respondent considering the principles relevant to re-sentencing. The court had to assess the rehabilitation prospects of the respondent, taking into account the finding by the sentencing judge that Darby was "at the crossroads." Additionally, the court considered the objective seriousness of the respondent's role in the commission of the offence.

The court found that the sentencing judge had misunderstood the sentencing options available due to the recent legislative changes. Consequently, the court exercised its discretion to re-sentence the respondent, applying the relevant principles for re-sentencing. The court found that the imposition of the same sentence by the sentencing judge was appropriate, given the circumstances and the rehabilitation prospects of Darby. The court thus upheld the sentence originally imposed by the sentencing judge.

Orders