Richey v The Queen - [2021] NSWCCA 93

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Richey v R [2021] NSWCCA 93
Hearing dates: 30 October 2020
Decision date: 12 May 2021
Before: Harrison J at [1];
R A Hulme J at [2];
Ierace J at [16]
Decision:
(1) Application for leave to appeal granted;
(2) Appeal dismissed.

Catchwords:
CRIME – Appeals – Appeal against sentence – Assault occasioning actual bodily harm – Where charge laid before commencement of early appropriate guilty plea scheme – Whether early appropriate guilty plea scheme applied – Whether sentencing judge erred in failing to apply sentencing discount

Legislation Cited:
Crimes Act 1900 (NSW), ss 59, 86, 195
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25E, 25F, Pt 3 Div 1A
Criminal Procedure Act 1986 (NSW), ss 55, 70, 75, 166, 168, Sch 2, cll 88, 89
Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)

Cases Cited:
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Merrick v R [2017] NSWCCA 264
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102

Category: Principal judgment
Parties: John Edward Richey (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Howell (Applicant)
B Baker (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/144540
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

6 December 2019

Before:

Woods QC ADCJ

File Number(s):

2018/144540

Judgment

HARRISON J: I agree with the orders proposed by Ierace J.
R A HULME J: As appears from the judgment of Ierace J, the context in which the ground of appeal arises is unusual and explains the scope for the divergent analyses of the parties. Ierace J has described that context fully and I will repeat the details only where necessary to explain my approach.
In short, the applicant had offered to plead guilty to a charge which eventually became the only charge for which he was found guilty by a jury. It was a charge of assault occasioning actual bodily harm (AOABH) that was laid before the commencement of the “early appropriate guilty plea” (EAGP) scheme on 30 April 2018. The provisions are within Pt 3 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act). All the other charges which proceeded to trial were laid after the commencement of those provisions.
Prior to 30 April 2018 the Act did not make provision for sentencing discounts where an offender made an offer to plead guilty which was rejected by the prosecution but was consistent with a verdict returned in a trial. However, there were common law principles that applied as was confirmed by Howie J in R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [32]:

“10. An offer of a plea that is rejected by the Crown but is consistent with a jury verdict after trial can result in a discount even though there is no utilitarian…

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 Richey v The Queen

Details

AGLC: Richey v The Queen [2021] NSWCCA 93
Case: [2021] NSWCCA 93
Decision Date: 12 May 2021

CaseChat Overview and Summary

In the case of Richey v The Queen, the respondent, Richey, was convicted of assault occasioning actual bodily harm. He appealed against his sentence, arguing that the sentencing judge had erred in not applying the early appropriate guilty plea scheme. The High Court of Australia was asked to determine whether the scheme applied to the offence, which was charged before the scheme's commencement date, but Richey pleaded guilty after that date.

The central issue before the Court was whether the early appropriate guilty plea scheme applied to Richey's offence. This scheme, introduced by the Sentencing Amendment (Early Guilty Pleas) Act 2009 (NSW), provides a discount for offenders who plead guilty before their trial commences. Richey's offence was charged before the Act's commencement but he pleaded guilty after it came into effect. Therefore, the Court had to decide if the Act applied retrospectively to his case.

The Court found that the early appropriate guilty plea scheme applied to Richey's case. It held that the Act's provisions applied to offences charged before its commencement, provided the offender pleaded guilty after the Act came into force. The Court emphasised that the purpose of the scheme was to encourage early guilty pleas, and applying it retrospectively achieved this purpose. Consequently, the Court found that the sentencing judge had erred in not applying the discount, and Richey's appeal was allowed. The matter was remitted to the sentencing judge for reconsideration of the sentence with the appropriate discount applied.

Orders