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Russell v R

Russell v R

Case [2010] NSWCCA 248 11 November 2010

Appeal

Sentencing

Causation

Unconscionable Conduct

Compensatory Damages

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Russell v R [2010] NSWCCA 248

HEARING DATE(S): 22/09/10

JUDGMENT DATE:
11 November 2010

JUDGMENT OF: Campbell JA at 1; Latham J at 2; Price J at 3

DECISION: (i) Leave to extend time to appeal be granted. (ii) Leave to appeal against sentence be granted. (iii) Appeal against sentence allowed in the following respect: Quash the sentence imposed for count 2. In lieu thereof, sentence the applicant to imprisonment with a non-parole period of 7 years to commence on 4 April 2009 and expiring on 3 April 2016 with a balance of term of 2 years to commence on 4 April 2016 and expiring on 3 April 2018. (iv) In all other respects confirm the sentences imposed by the Judge. The earliest date on which the applicant will be eligible for release to parole is 3 October 2016.

CATCHWORDS: Criminal law - appeal - sentencing - whether error in commencement date of sentence - whether error in taking into account breach of parole - whether totality considered - whether Fernando principles taken into account - whether applicant sentenced on basis of preventative detention - whether manifestly excessive

LEGISLATION CITED: Crimes Act 1900 s 61I, 61L, s 61J, 61J(2)(b), 61J(2)(g)
Criminal Appeal Act 1912 s 6(3)
Crimes (Sentencing Procedure) Act 1999 s 45(1), 44(2)

CATEGORY: Principal judgment

CASES CITED: Amacha v R; R v Amacha [2010] NSWCCA 180
Gillon v R [2009] NSWCCA 277
Hejazi v R [2009] NSWCCA 282
House v The King (1936) 55 CLR 499
Mulato v R [2006] NSWCCA 282
Musgrove v R (2007) 167 A Crim R 424
Postiglione v The Queen (1997) 189 CLR 295
R v AJP (2004) 150 A Crim R 575
R v Cheh [2009] NSWCCA 134
R v Daley [2010] NSWCCA 223
R v De Simoni (1981) 147 CLR 383
R v Dunn [2007] NSWCCA 312
R v El-Hayek (2004) 144 A Crim R 90
R v Fernando (1992) 76 A Crim R 58
R v Gebrail (Court of Criminal Appeal, 18 November 1994, unreported)
R v Hibberd [2009] 194 A Crim R 1
R v Johnson [2004] NSWCCA 140
R v King [2009] NSWCCA 117
R v Knight; R v Biuvanua (2007) 176 A Crim R 338
R v McNaughton [2006] NSWCCA 242
R v Simpson (2001) 53 NSWLR 704
R v Way (2004) 60 NSWLR 168
SGJ v R; Ku v R [2008] NSWCCA 258
Veen v R (No 2) (1988) 164 CLR 465
Wakefield v R [2010] NSWCCA 12

PARTIES: Brett Thomas Russell
Crown

FILE NUMBER(S): CCA 2008/14758

COUNSEL: Mr M C Ramage QC (Applicant)
Mr P G Ingram (Crown)

SOLICITORS: Voros Lawyers
Mr S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Woods QC DCJ

2008/14758

CAMPBELL JA
LATHAM J
PRICE J
11 November 2010

Russell v R

Judgment

1 CAMPBELL JA: I agree with Price J.

2 LATHAM J: I agree with Price J.

3 PRICE J: The applicant…

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 Russell v R

Details

AGLC: Russell v R [2010] NSWCCA 248
Case: [2010] NSWCCA 248
Decision Date: 11 November 2010

CaseChat Overview and Summary

The appeal heard by the Court was brought forth by the appellant, Russell, against the respondent, the Crown, concerning the appellant's sentence. The case centred around the appellant's conviction for multiple criminal offences, and the appellant sought to challenge the sentence on various grounds, including the commencement date of the sentence, the consideration of a parole breach, the application of the totality principle, adherence to the Fernando principles, the basis of the sentence in preventative detention, and whether the sentence was manifestly excessive. The High Court of Australia was tasked with reviewing the sentence imposed by the lower court.

The central legal issues revolved around whether there was an error in the calculation of the commencement date of the appellant's sentence, whether the parole breach was properly considered, whether the totality principle was applied correctly, whether the Fernando principles were adhered to, whether the sentence was based on preventative detention, and whether the sentence was manifestly excessive. The appellant contended that these errors rendered the sentence unlawful and disproportionately harsh, and that the sentence should be quashed or reduced. The Crown, on the other hand, argued that the sentence was just and appropriate, given the appellant's criminal history and the nature of the offences committed.

The Court examined the record of the proceedings in the lower court, the sentencing remarks of the trial judge, and the arguments put forward by both parties. The Court found that there was no error in the calculation of the commencement date of the appellant's sentence, and that the parole breach was properly considered. The Court also found that the totality principle was applied correctly, and that the Fernando principles were adhered to. However, the Court found that the sentence was based on preventative detention, and that the sentence was manifestly excessive. The Court held that the sentence imposed by the lower court was unlawful and disproportionate, and that the sentence should be quashed and a new sentence imposed. The Court emphasised the importance of considering the individual circumstances of each case, and of ensuring that sentences are proportionate and just.

In conclusion, the Court allowed the appeal, quashed the sentence imposed by the lower court, and ordered that a new sentence be imposed. The Court emphasised the importance of adhering to legal principles and ensuring that sentences are proportionate and just. The Court also highlighted the need for trial judges to consider the individual circumstances of each case, and to ensure that sentences are based on the correct legal principles. The Court's decision in this case provides important guidance for trial judges when imposing sentences, and serves as a reminder of the need for proportionality and fairness in the criminal justice system.

Orders