Regina v Philp - [1999] NSWCCA 253

Reported Decision:
108 A Crim R 336

New South Wales

Court of Criminal Appeal

CITATION: REGINA v. PHILP [1999] NSWCCA 253

FILE NUMBER(S): CCA 60157 of 1999

HEARING DATE(S): Monday 16 August 1999

JUDGMENT DATE:
16 August 1999

PARTIES :

REGINA v.
PHILP, Gregory Lee

JUDGMENT OF: Wood CJ at CL at 26; Greg James J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/61/0193

LOWER COURT JUDICIAL OFFICER: Mahoney, DCJ.

COUNSEL: Crown: L.M.B. Lamprati
App: P.J.D. Hamill

SOLICITORS: Crown: S.E. O'Connor
App: Western Aboriginal Legal Service Limited

CATCHWORDS: Sentencing - deferred sentence - relevance of good conduct during lengthy remand - terms of recognisance - error as to length - error as to inappropriate terms - inappropriate to require supervision for whole term unless Probation Service deem it necessary - inappropriate to impose term unrelated to offence, controlling offender's private life - inappropriate term as to place offender could consume alcohol - such term inconsistent with offence and record - remarks as to call up on recognisance inappropriate as suggesting pre-judgment and lack of impartiality - role of judge and prosecutor in sentencing proceedings - patronising and hostile attitude inappropriate - necessity for objective detachment and dispassionate assessment on sentencing.

ACTS CITED: Crimes Act 1900

CASES CITED:
Macpherson v. Beath (1975) 12 SASR 174;
Harvey (1989) 40 A. Crim R. 102;
Chow v. Director of Public Prosecutions (1992) 28 NSWLR 593;
Davis (1984) 3 NSWLR 572;
Gibson v. O'Keefe (Einstein, J., 20 May 1998)

DECISION: Appeal upheld

IN THE COURT OF
CRIMINAL APPEAL
No. 60157 of 1999 CORAM: WOOD, CJ. at CL.
GREG JAMES, J.

MONDAY 16 AUGUST 1999

REGINA v. GREGORY LEE PHILP
JUDGMENT
1 WOOD, CJ. at CL: I will ask Justice Greg James to give the first judgment. 2 GREG JAMES, J: Leave to appeal is sought in respect of the sentencing order of his Honour Judge Mahoney on 18 March 1999 in the District Court at Broken Hill for the applicant's offence of assault occasioning actual bodily harm. The applicant had been found guilty of having committed that crime on 5 July 1996 after a jury trial in which he was acquitted of a more serious charge. He had been on conditional liberty on terms during the intervening two years and nine months. 3 His Honour deferred passing sentence upon the applicant entering into a recognisance in the sum of $2,000 to be of good behaviour for five years on condition that he:-

"1. Pursue TAFE course in literacy and numeracy.

2. Not to consume legal intoxicating substances in any licensed premises (hotels, clubs, beer tents at racecourses, showgrounds or the like) during the period of the recognisance.

3. To place self under the care and supervision of Victorian counterpart of Probation and Parole Service and accept all recommendations from that Service.

4. To give effect of condition No 4, to report to the Broken Hill Probation and Parole Office by 12 noon Friday 19 March 1999…

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 Philp

Details

AGLC: Regina v Philp [1999] NSWCCA 253
Case: [1999] NSWCCA 253
Decision Date: 16 August 1999

CaseChat Overview and Summary

The case of Regina v Philp involved the defendant, Philp, and the Crown. The dispute centred on the sentencing of Philp following a conviction. The matter was heard in the relevant Australian court. The central legal issues concerned the appropriateness of the sentencing terms imposed on Philp, including the relevance of his conduct during remand, the errors in the recognisance terms, and the general suitability of the conditions set.

The court examined whether the judge appropriately considered Philp's good conduct during his lengthy remand period and if this should have influenced the sentence. It also evaluated the errors in the recognisance terms, including the mistaken length of the supervision term and the inappropriate terms set by the judge. The court found that it was inappropriate to require supervision for the entire term unless the Probation Service deemed it necessary and that terms unrelated to the offence, such as those controlling Philp's private life and restricting his alcohol consumption, were unsuitable. The court highlighted that such terms were inconsistent with the nature of the offence and Philp's record. Furthermore, the court addressed the inappropriate remarks regarding the call-up on recognisance, noting that they suggested pre-judgment and a lack of impartiality. The court also considered the conduct of the judge and prosecutor during the sentencing proceedings, emphasising the need for an objective, detached, and dispassionate assessment.

The court concluded that the sentencing terms imposed on Philp were inappropriate and ordered a reconsideration of the sentence, taking into account the issues raised. The final orders included adjustments to the recognisance terms, ensuring they were more aligned with the offence and Philp's conduct, and a directive for the judge to approach the sentencing proceedings with the necessary objectivity and impartiality.

Orders