Regina v Drew - [2005] NSWCCA 50

CITATION:
Regina v Drew [2005] NSWCCA 50

HEARING DATE(S): 16/02/2005

JUDGMENT DATE:

23 February 2005

JUDGMENT OF:
Bryson JA at 1; Barr J at 20; Hoeben J at 21

DECISION:
(1) The applicant is granted leave to appeal against sentence.; (2) The sentence imposed upon the applicant by the District Court at Port Macquarie on 4 December 2003 on conviction of aggravated assault with intent to take a motor vehicle while armed with an offensive weapon under s.154C(2) of the Crimes Act 1900 is set aside.; (3) In lieu thereof the applicant is sentenced to imprisonment for four years to commence from 4 September 2003 and to expire on 3 September 2007, with a non-parole period of two years to commence on 4 September 2003 and expire on 3 September 2005.; (4) The applicant will become eligible for release to parole on 3 September 2005.

CATCHWORDS:
CRIMINAL LAW - sentencing - appeal against sentence - reference by Sentencing Judge to utilitarian value of plea of guilty followed immedaitely by reference to strength of Crown case and difficulty of any defence - no expressed discount - sentencing discretion erroneous - resentenced by CCA

LEGISLATION CITED:

Crimes Act 1900
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Regina v. Sutton [2004] NSWCCA 225
Regina v. Thomson; Regina v Houlton (2000) 49 NSWLR 383
Regina v. Way [2004] NSWCCA 131

PARTIES:
Rebecca Thelma Drew - Applicant
Crown - Respondent

FILE NUMBER(S):
CCA 2451/2004

COUNSEL:
R Hulme - Applicant
DC Frearson SC - Respondent

SOLICITORS:
SRALCS- Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/31/0403

LOWER COURT JUDICIAL OFFICER:
Christie DCJ

2451/2004

BRYSON JA
BARR J
HOEBEN J
WEDNESDAY 23 FEBRUARY 2005

REGINA v. REBECCA THELMA DREW

Judgment

1 BRYSON JA: The applicant Ms Drew seeks leave to appeal against a sentence imposed on her by his Honour Judge Christie QC in the District Court at Port Macquarie on 4 December 2003. The principal offence for which she was then sentenced was car-jacking in aggravated circumstances contrary to s.154C(2) of the Crimes Act 1900, for which the statutory maximum penalty is fourteen years imprisonment. The applicant was sentenced for that offence to imprisonment for five years commencing on 4 September 2003 with a non-parole period of three years also commencing on 4 September 2003.

2 At the same time the applicant was convicted of and sentenced for four other offences under the procedure in s.166 of the Criminal Procedure Act 1986. These offences and the sentences imposed are as follows:

Drive speed dangerous s.42(2) of Road Transport (Safety and Traffic Management) Act 1999 Fixed term of 9 months imprisonment from 4/9/03 to 3/6/04
Disqualified from driving for 3 years from 4/9/03

Driving under influence of alcohol s.12(1)(a) of Road Transport
(Safety and Traffic
Management) Act 1999 Fixed term of 9 months imprisonment
from 4/9/03 to 3/6/04
Disqualified from driving for 3 years from 4/9/03

Malicious damage s.195(a) of Crimes…

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 Drew

Details

AGLC: Regina v Drew [2005] NSWCCA 50
Case: [2005] NSWCCA 50
Decision Date: 23 February 2005

CaseChat Overview and Summary

The case of Regina v Drew involved an appeal against the sentence imposed by the sentencing judge. The defendant, Drew, was convicted and sentenced in the Court of Criminal Appeal (CCA). The nature of the dispute centred around the appropriateness of the sentence handed down, specifically the sentencing judge's consideration of the utilitarian value of the defendant's guilty plea and the strength of the Crown's case. The appeal was heard by the CCA, which was tasked with determining whether the sentencing discretion exercised by the original judge was erroneous.

The legal issue before the court was whether the sentencing judge had properly exercised their discretion by considering the utilitarian value of the guilty plea in combination with the strength of the Crown's case and the difficulty of any potential defence, without expressly quantifying the discount for the guilty plea. The court had to assess if this approach constituted an error in the exercise of sentencing discretion. Furthermore, the court needed to decide if the absence of an expressed discount for the guilty plea warranted a resentencing by the CCA.

In its reasoning, the court found that the sentencing judge had indeed erred by referring to the utilitarian value of the guilty plea and the strength of the Crown's case without explicitly stating the discount for the plea. The court held that this approach did not allow for a proper application of sentencing principles, as the absence of an expressed discount meant the judge's decision-making process was not transparent and could have impacted the final sentence. As a result, the court determined that the sentencing discretion was erroneous and Drew was to be resentenced by the CCA. The CCA subsequently resentenced Drew, taking into account the principles of sentencing and ensuring an expressed discount for the guilty plea.

Orders