Regina v Gamgee - [2001] NSWCCA 251

Reported Decision:
51 NSWLR 707
124 A Crim R 469

New South Wales

Court of Criminal Appeal

CITATION: REGINA v GAMGEE [2001] NSWCCA 251

FILE NUMBER(S): CCA 60111/01

HEARING DATE(S): 3 May 2001

JUDGMENT DATE:
5 July 2001

PARTIES :

REGINA v Jay Michael GAMGEE

JUDGMENT OF: Mason P at 1; Sully J at 23; Dowd J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/0079

LOWER COURT JUDICIAL
OFFICER : Phegan DCJ

COUNSEL : Crown: P G Berman SC
Respondent: P J Stratton

SOLICITORS: Crown: O'Connor
Respondent: -

CATCHWORDS: s12 Crimes (Sentencing Procedure) Act 1999 - whether sentence contrary to law - whether execution of a sentence may be partially suspended - whether only power to impose term of effective imprisonment followed by non-custodial period is setting of non-parole period in accordance with s44.

DECISION: (By majority) Appeal dismissed.

IN THE COURT OF
CRIMINAL APPEAL

CCA 60111/01

MASON P

SULLY J

DOWD J

Thusday 5 July 2001

REGINA v Jay Michael GAMGEE

Held by Mason P and Dowd J, Sully J dissenting:

1. Section 12(1)(a) of the Crimes (Sentencing Procedure) Act 1999 expressly contemplates that execution of a sentence may be suspended for any specified period that does not exceed the term of the sentence imposed. There is no reason why these words should be restricted to exclude the power to suspend part of the sentence.

2. The preferred interpretation allows appropriate denunciation of a serious offence, but with partial suspension of an initial portion of the term of imprisonment to enable some event to take place or, (as in the instant case) the conditional partial suspension at the latter end of the term imposed.
3. The Crown submission that the scheme of s44 would be subverted by this interpretation of s12(1)(a) should be rejected.

(cited).

ORDERS

Appeal dismissed.

CCA 60111/01

MASON P

SULLY J

DOWD J

Thusday 5 July 2001

REGINA v Jay Michael GAMGEE

JUDGMENT

1 MASON P and DOWD J: Following a plea of guilty to the offence of kidnapping, Judge Phegan imposed a sentence of imprisonment for two years to date from 13 December 2000. Relying upon s12 of the Crimes (Sentencing Procedure) Act 1999 (the Act) he directed that the prisoner be released from custody after six months and that he be placed on a good behaviour bond for the remaining 18 month period to appear for sentence if called upon at any time for any breach occurring during that period. The bond was to be subject to conditions including notification of changes in residential address, supervision by the Probation and Parole Service and acceptance of all reasonable directions of that Service.

2 The sentence is challenged on the single ground that it was contrary to law.

3 Section 12 of the Act provides:

12 Suspended sentences

(1)

A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an…

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 Gamgee

Details

AGLC: Regina v Gamgee [2001] NSWCCA 251
Case: [2001] NSWCCA 251
Decision Date: 5 July 2001

CaseChat Overview and Summary

In Regina v Gamgee, the defendant, Gamgee, was before the court on appeal against a sentence imposed by the lower court. The nature of the dispute was the legality of the sentence imposed, particularly concerning whether it was contrary to law, whether a sentence could be partially suspended, and whether the setting of the non-parole period was in accordance with the relevant provisions of the Crimes (Sentencing Procedure) Act 1999. The case was heard in the Court of Criminal Appeal.

The court had to decide several legal issues. Firstly, whether the sentence imposed by the lower court was contrary to law. Secondly, whether the execution of a sentence could be partially suspended. Thirdly, whether the only power to impose a term of effective imprisonment followed by a non-custodial period was the setting of the non-parole period in accordance with section 44 of the Act. The court needed to interpret the relevant statutory provisions to determine the legality of the sentence.

The Court of Criminal Appeal found that the sentence imposed by the lower court was not contrary to law. The court held that the sentence could be partially suspended, allowing for a period of imprisonment followed by a non-custodial period. Furthermore, the court clarified that the setting of the non-parole period was not limited to the period of effective imprisonment followed by a non-custodial period, as provided for in section 44 of the Act. The court concluded that the sentence was lawful and did not contravene the statutory provisions.

The court made orders affirming the sentence imposed by the lower court and dismissing the appeal. The court held that the sentence was within the legal parameters set by the Crimes (Sentencing Procedure) Act 1999 and did not contravene any statutory provisions.

Orders