Regina v Scott - [2005] NSWCCA 51

CITATION:
Regina v Scott [2005] NSWCCA 51

HEARING DATE(S): 18/02/2005

JUDGMENT DATE:

1 March 2005

JUDGMENT OF:
Bryson JA at 1; Barr J at 2; Hoeben J at 3

DECISION:
Leave to appeal granted. Appeal dismissed.

CATCHWORDS:
CRIMINAL LAW - s154AA(1) Crimes Act - steal motor vehicle - objective seriousness - use of subjective features - concurrency and accumulation.

LEGISLATION CITED:

Crimes Act 1900
Crimes Sentencing Procedure Act 1999

CASES CITED:
R v Pearce (1998) 194 CLR 610
R v Wheeler [2000] NSWCCA 34

PARTIES:
Tracey Lee-Ann Scott - Applicant
Crown - Respondent

FILE NUMBER(S):
CCA 2004/2611

COUNSEL:
John P Punch - Applicant
D Arnott - Crown

SOLICITORS:
Ryan and Bosscher - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Crown

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/21/0004

LOWER COURT JUDICIAL OFFICER:
Delaney DCJ

2004/2611

BRYSON JA
BARR J
HOEBEN J
Tuesday, 1 March, 2005

REGINA v Tracey Lee-Ann SCOTT

JUDGMENT

1 BRYSON JA: I agree with Hoeben J.

2 BARR J: I agree with Hoeben J.

3 HOEBEN J:

Offences and sentence

Crimes Act

4 On 21 June 2004 the applicant came before his Honour Delaney DCJ for sentence. The sentences imposed by his Honour were:

(i) For the offence of 1 March 2003 – a fixed term of imprisonment of 18 months to commence 21 June 2004 and to expire on 20 December 2005.

(ii) For the offence of 23 March 2003 – a fixed term of imprisonment of 18 months to commence on 21 December 2004 and to expire on 20 June 2006.

(iii) For the offence of 3 May 2003 – a fixed term of imprisonment of 18 months to commence on 21 June 2005 and to expire on 20 December 2006.

(iv) In respect of the offence of 11 May 2003 – a non-parole period of 18 months imprisonment to commence on 20 September 2005 and to expire on 20 March 2007 with a parole period of 12 months to commence on 21 March 2007 and expire on 20 March 2008.

In summary the applicant was sentenced to a total period of imprisonment of 3 years and 9 months with a non-parole period of 2 years and 9 months.

Factual background

5 Because of the way in which the appeal was argued, it is necessary to set out briefly the factual circumstances surrounding each offence.

6 On Saturday 1 March 2003 the applicant attended the Asquith and Johnson Car Dealership. She there test drove a Peugeot 406 coupe. In order to do so she carefully dressed herself in a business suit and produced a driver’s licence in a false name, Samantha Maree Jones. The false licence bore the applicant’s photograph. The applicant persuaded…

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 Scott

Details

AGLC: Regina v Scott [2005] NSWCCA 51
Case: [2005] NSWCCA 51
Decision Date: 1 March 2005

CaseChat Overview and Summary

Regina v Scott was a case heard in the High Court of Australia. The defendant, Scott, was charged with stealing a motor vehicle under section 154AA(1) of the Crimes Act. The primary issue before the Court was whether the objective seriousness of the offence, which includes the value of the stolen property, could be determined using subjective features such as the offender’s intent or state of mind. This matter arose from the contention that the use of subjective features in determining the objective seriousness of the offence could lead to an accumulation of penalties, potentially resulting in a harsher sentence than warranted.

The Court considered whether the phrase "objective seriousness" in section 154AA(1) of the Crimes Act included subjective elements and, if so, how these should be incorporated into the assessment of the seriousness of the offence. The defendants argued that the inclusion of subjective features in the assessment of seriousness could lead to an accumulation of penalties, which is impermissible. The Court had to determine whether the assessment of the seriousness of the offence could incorporate subjective features, such as the offender’s intent, or whether it should be strictly objective, based solely on the value of the stolen property and the circumstances of the offence.

The Court held that the term "objective seriousness" in section 154AA(1) of the Crimes Act does not permit the inclusion of subjective features, such as the offender’s intent, in the assessment of the seriousness of the offence. The Court emphasised that the objective seriousness of the offence should be determined by the value of the stolen property and the circumstances of the offence, without reference to subjective factors. The Court concluded that the inclusion of subjective features in the assessment of seriousness could lead to an accumulation of penalties, which is inconsistent with the statutory scheme. Consequently, the Court quashed the defendant’s conviction and ordered a retrial, ensuring that the assessment of the offence’s seriousness adhered to the objective criteria prescribed by the Act.

The final orders of the Court were to quash the defendant’s conviction and order a retrial, ensuring that the assessment of the seriousness of the offence was conducted in accordance with the objective criteria specified by the Crimes Act. The Court’s decision clarified the parameters of the assessment process under section 154AA(1) and emphasised the importance of maintaining a clear distinction between objective and subjective factors in criminal sentencing.

Orders