Roy v The Queen

Case [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

  1. 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.

  2. 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.

  3. 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.

  4. 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…

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Roy v The Queen [2021] NSWCCA 247
Case
[2021] NSWCCA 247
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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