Regina v Spelling - [1999] NSWCCA 273

CITATION: Regina v SPELLING [1999] NSWCCA 273

FILE NUMBER(S): CCA 60295/98

HEARING DATE(S): 2 July 1999

JUDGMENT DATE:
2 July 1999

PARTIES :

The Crown
Dylan Chadwick Spelling

JUDGMENT OF: Newman J at 1; Bell J at 28

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/31/0497

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL: D N Howard (Crown)
R Burgess (Appl)

SOLICITORS: C K Smith (Crown)
T A Murphy (Appl)

CATCHWORDS:

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60295/98

NEWMAN J
BELL J

FRIDAY, 2 JULY 1999

REGINA v Dylan Chadwick SPELLING

JUDGMENT
1    NEWMAN J: This is an application for leave to appeal against the sentence imposed by Delaney DCJ in the District Court on 29 May 1998.
2 The applicant had pleaded guilty before his Honour to an indictment containing four counts: obtaining a benefit by deception contrary to the provisions of s 178BA of the Crimes Act 1900. That crime carries a maximum penalty of five years imprisonment. He also asked his Honour to take into account nine matters consisting of eight matters of passing valueless cheques and one count, as it is described, perhaps inaccurately, of failing to pay for liquor and accommodation.
3    The matters contained in the indictment proper amounted to some $41,000 in the first three counts. The fourth count involved the attempt to obtain a BMW car from a North Shore car dealer. That car had been recovered so no compensation was sought.
4    In respect of the first three counts there was about $41,000 sought in compensation and in relation to the matters contained in the Form 1 the amount involved totalled in all some $14,600-odd. Accordingly, approximately $56,000 was involved altogether.
5    The sentencing judge imposed a sentence consisting of a head sentence of three years and four months, consisting of a minimum term of two and a half years to commence on 2 September 1997 and expire on 1 March 2000 and an additional of ten months to commence on 2 March 2000 and expire on 1 January 2001. Of course, that represents the proportion stipulated by the Sentencing Act in the absence of a finding of special circumstances. His Honour did consider the matter of special circumstances but declined to find that any existed.
6    The principal challenge made to his Honour's sentence was in relation to a finding made by his Honour that he did not accept evidence given by a psychologist, a Mr Taylor, that at the relevant time the applicant was suffering from a condition known as post traumatic stress disorder. That post traumatic stress disorder was said by Mr Taylor in his report to be linked to an episode in 1992 where the applicant was a witness to a singularly unpleasant hit and run episode, in which a person was killed and, indeed, as one understands the matters put before this Court, the driver of the motor vehicle in question was ultimately charged with murder. Not only might I say…

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 Spelling

Details

AGLC: Regina v Spelling [1999] NSWCCA 273
Case: [1999] NSWCCA 273
Decision Date: 2 July 1999

CaseChat Overview and Summary

In Regina v Spelling, the applicant, Dylan Chadwick Spelling, appealed against the sentence imposed by the District Court, arguing that the sentencing judge erred in not finding special circumstances, particularly in relation to the diagnosis of post-traumatic stress disorder (PTSD). The Court of Criminal Appeal, consisting of Newman J and Bell J, dismissed the appeal and granted leave to appeal. The applicant had pleaded guilty to four counts of obtaining a benefit by deception, totaling approximately $56,000, and had a history of similar crimes. The sentencing judge imposed a sentence of three years and four months imprisonment, finding that the applicant's PTSD did not influence the commission of his crimes. The Court of Criminal Appeal found that the sentencing judge was not in error in declining to find special circumstances, as the applicant's criminal history and the nature of the crimes made it difficult to accept his claim of intent to reform.

The primary legal issue in this case was whether the sentencing judge erred in not finding special circumstances in the applicant's case, particularly in light of the diagnosis of PTSD. The Court of Criminal Appeal considered the applicant's criminal history, the nature of the crimes committed, and the evidence presented regarding the applicant's mental health. The Court found that the sentencing judge was not in error in declining to find special circumstances, as the applicant's criminal history and the nature of the crimes made it difficult to accept his claim of intent to reform. The Court also found that, even if the diagnosis of PTSD was accepted, a lesser sentence than that imposed by the sentencing judge could not be justified.

The Court of Criminal Appeal concluded that the sentencing judge was not in error in declining to find special circumstances and that the sentence imposed was appropriate. The Court granted leave to appeal but dismissed the appeal, as the sentence imposed by the sentencing judge would not have been less than that already imposed. The Court's decision highlights the importance of considering an offender's criminal history and the nature of the crimes committed when determining whether special circumstances exist in a sentencing matter.

Orders