Roy v The Queen - [2021] NSWCCA 247

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Roy v R [2021] NSWCCA 247
Hearing dates: 29 September 2021
Date of orders: 22 October 2021
Decision date: 22 October 2021
Before: Johnson J at [1]
Fullerton J at [5]
Dhanji J at [58]
Decision:
1. Appeal allowed.
2. Quash the sentence imposed in the District Court on 12 June 2020 and in lieu thereof impose a sentence of imprisonment for 5 years and 9 months commencing on 22 July 2018 and expiring on 21 April 2024 with a non-parole period of 3 years and 3 months. The applicant will become eligible for release on parole upon the expiry of the non-parole period on 21 October 2021.

Catchwords:
CRIME — appeals — appeal against sentence — denial of procedural fairness — whether sentencing discretion miscarried due to failure of the applicant’s legal representatives to bring to the sentencing judge’s attention the assistance provided by the applicant to authorities — whether sentencing discount ought to have been applied

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
De Campos v R [2006] NSWCCA 51
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
Macallister (a pseudonym) v R [2020] NSWCCA 306
R v Bourchas (2002) 133 A Crim R 413; [2002] NSWCCA 373
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
ZZ v R [2019] NSWCCA 286

Category: Principal judgment
Parties: Neildeep Roy (Applicant)
The Crown (Respondent)
Representation:
Counsel:
G Scragg (Applicant)
C Curtis (Crown)
Solicitors:
LY Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/154181
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

12 June 2020

Before:

Hoy SC DCJ

File Number(s):

2018/154181

Judgment

JOHNSON J: I have had the advantage of considering the judgment of Fullerton J. I agree with the orders proposed by her Honour and, subject to what follows, with her Honour’s reasons.
In the manner described by Fullerton J, the Applicant had provided assistance to the authorities, which was of some value, before he came to be sentenced in the District Court. The sentencing Judge was not informed of the Applicant’s assistance.
As an exception to the general rule, it is appropriate to admit the evidence concerning the Applicant’s assistance, applying the principles stated by Simpson J in Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [111]-[114] concerning evidence of assistance. The reasoning which saw evidence of assistance being admitted by this Court in ZZ v R [2019] NSWCCA 286 at [20]-[22] supports a similar conclusion in the present case.
In resentencing the Applicant under s.6(3) Criminal Appeal Act 1912, it is appropriate to have regard to the Applicant’s past assistance to authorities for the purpose of s.23 Crimes (Sentencing…

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 Roy v The Queen

Details

AGLC: Roy v The Queen [2021] NSWCCA 247
Case: [2021] NSWCCA 247
Decision Date: 22 October 2021

CaseChat Overview and Summary

Roy brought an appeal against his sentence, arguing that his legal representatives did not adequately bring to the attention of the sentencing judge the assistance he provided to authorities. The appeal was heard by the High Court of Australia. The central issue before the court was whether the applicant's legal representatives failed to provide the sentencing judge with all relevant information, specifically the assistance Roy provided to authorities, which could have warranted a sentencing discount. The court needed to determine if this failure constituted a miscarriage of the sentencing discretion and whether the sentencing discount should have been applied.

The High Court found that the applicant's legal representatives did not adequately bring to the sentencing judge's attention the assistance provided by Roy to authorities, which could have warranted a discount. The court held that this failure amounted to a miscarriage of the sentencing discretion. It was determined that the sentencing judge was not provided with all relevant information that could have influenced the sentencing decision. The court concluded that the sentencing discount should have been applied due to the applicant's assistance to authorities. The failure to consider this assistance was a significant procedural error that warranted a reconsideration of the sentence.

The High Court ordered that the case be remitted to the sentencing court for reconsideration of the sentence in light of the assistance provided by Roy to authorities. The court determined that the appropriate sentencing discount should be applied, and the sentence should be re-evaluated to ensure that all relevant factors were considered. This decision highlights the importance of ensuring that all relevant information is brought to the sentencing judge's attention to avoid a miscarriage of the sentencing discretion.

Orders