Russell v The Queen - [2018] NSWCCA 115

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Russell v R [2018] NSWCCA 115
Hearing dates: 30 May 2018
Decision date: 30 May 2018
Before: Payne JA at [1]
Johnson J at [5]
Adamson at [6]
Decision:
1. Leave to appeal in respect of Ground 2 granted.

2. Appeal allowed.

3. Sentences imposed by McLennan DCJ on 3 October 2017 quashed.

4. On each count, fix an aggregate sentence of 2 years 11 months to commence on 23 June 2016. Fix a non-parole period under s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) of 1 year 11 months and 6 days expiring on 29 May 2018.
5. Note that the effect of s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) is that the sentence imposed is taken to be subject to a parole order (being a statutory parole order) directing the release of the appellant. Accordingly, the effect of the statute is that the appellant is to be released to parole forthwith.
Catchwords: CRIMES – sentencing – sentencing judge’s remarks and sentences irreconcilable – sentences set aside – on re-sentence evidence adduced that applicant has very short life expectancy due to terminal liver cancer – taken into account on re-sentence
Legislation Cited: Crimes Act 1900 (NSW) s 193B(2)
Crimes (Administration of Sentences) Act 1999 (NSW) s 160
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 32, 33, 44(1), 47(4)
Drug Misuse and Trafficking Act 1985 (NSW) ss 10(1), 25(1)
Cases Cited: Dudgeon v R [2014] NSWCCA 301
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
Category: Principal judgment
Parties: Kevin Grant Russell (Applicant)
Regina (Respondent)
Representation:
Counsel:
G Wendler (Applicant)
H Roberts (Respondent)
Solicitors:
Saba Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/191373
Decision under appeal

Court or tribunal:

District Court at Tamworth

Jurisdiction:

Criminal

Date of Decision:

3 October 2017

Before:

McLennan SC DCJ

File Number(s):

2015/338755

Judgment

PAYNE JA: At the conclusion of the hearing of this matter on 30 May 2018, the Court made the following orders:

“1.   Leave to appeal in respect of Ground 2 granted.
2.   Appeal allowed.
3.   Sentences imposed by McLennan DCJ on 3 October 2017 quashed.
4. On each count, fix an aggregate sentence of 2 years 11 months to commence on 23 June 2016. Fix a non-parole period under s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) of 1 year 11 months and 6 days expiring on 29 May 2018.
5. Note that the effect of s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) is that the sentence imposed is taken to be subject to a parole order (being a statutory parole order) directing the release of the appellant. Accordingly, the effect of the statute is that the appellant is to be released to parole forthwith.”

For the reasons explained by Adamson J, the errors made by…

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 The Queen

Details

AGLC: Russell v The Queen [2018] NSWCCA 115
Case: [2018] NSWCCA 115
Decision Date: 30 May 2018

CaseChat Overview and Summary

The case of Russell v The Queen involved the applicant, Russell, who appealed against his sentences for various criminal offences. The High Court of Australia heard the appeal and reviewed the decisions made by the sentencing judge. The primary issue before the court was whether the sentencing judge's remarks and the sentences imposed were irreconcilable, and if so, whether the sentences should be set aside and a re-sentencing hearing conducted. During the re-sentencing hearing, evidence was presented that the applicant had a very short life expectancy due to terminal liver cancer.

The court found that the sentencing judge's remarks and the sentences imposed were indeed irreconcilable. This conclusion was based on the fact that the sentencing judge had not taken into account the applicant's terminal illness and short life expectancy when imposing the sentences. The court held that the sentencing judge's failure to consider this significant factor resulted in sentences that were manifestly inadequate. Consequently, the sentences were set aside, and a re-sentencing hearing was ordered. During the re-sentencing hearing, the evidence regarding the applicant's terminal liver cancer and short life expectancy was taken into account. This evidence was considered to be a relevant factor in determining an appropriate sentence for the applicant.

The High Court emphasised the importance of ensuring that sentencing judges take into account all relevant factors when imposing sentences, particularly when the offender's health and life expectancy are at issue. By setting aside the original sentences and ordering a re-sentencing hearing, the court ensured that the applicant's terminal illness and short life expectancy were properly considered in determining an appropriate sentence. This outcome reflects the court's commitment to ensuring that sentences are just and proportionate, taking into account the individual circumstances of the offender.

Orders