Sahartor v The Queen - [2020] NSWCCA 36

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Sahartor v R [2020] NSWCCA 36
Hearing dates: 24 February 2020
Date of orders: 13 March 2020
Decision date: 13 March 2020
Before: Meagher JA at [1]
Johnson J at [2]
Hamill J at [3]
Decision:
(1) The application for leave to appeal against sentence is dismissed.
(2) The application pursuant to section 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is refused.

Catchwords: CRIMINAL LAW – application for variation of commencement of sentence – where earlier unrelated sentence quashed – whether application for leave to appeal against sentence or application under s 59 – considerable confusion – where no ground impeaching reasons of sentencing judge – nature of appeal – jurisdiction – where extensive delay – whether criminal appeal rules provide a time limit for bringing application – discretionary considerations – where further sentences and parole orders made during period of delay – uncertainty around release dates if application was made earlier – whether egg can be unscrambled – where no evidence of matters relevant to the exercise of discretion – where applicant at large on parole order – rendering nugatory decisions of Parole Authority – application refused in exercise of discretion
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Allan v R (No 2) [2011] NSWCCA 27
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
R v Pham [2004] NSWCCA 263
Sahartor v R [2018] NSWCCA 236
Category: Principal judgment
Parties: Michael Sahartor (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Katsoolis & Co, Solicitors and Attorneys (Applicant)
Director of Public Prosecutions NSW (Respondent)

File Number(s): 2016/245213
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

07 December 2017

Before:

Acting Judge Madgwick QC

File Number(s):

2016/245213

Judgment

MEAGHER JA: I have had the advantage of reading in draft the judgment of Hamill J. I agree with his Honour’s reasons and the orders he proposes.
JOHNSON J: I agree with the reasons of Hamill J and the orders proposed by his Honour.
HAMILL J: Michael Sahartor makes an application to the Court for a variation to the commencement date of a sentence imposed by Acting Judge Madgwick QC on 7 December 2017. There was considerable confusion at the hearing as to whether this was an application for leave to appeal against sentence pursuant to the Criminal Appeal Act 1912 (NSW) or an application under s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW). For the reasons I will articulate, it is properly to be determined under s 59. Apart from the power provided to the Court by that provision, there is no ground of appeal that could be said to impeach the sentence imposed by the sentencing Judge. The application for leave…

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 Sahartor v The Queen

Details

AGLC: Sahartor v The Queen [2020] NSWCCA 36
Case: [2020] NSWCCA 36
Decision Date: 13 March 2020

CaseChat Overview and Summary

Sahartor, the appellant, applied to the court for a variation of the commencement of a sentence previously imposed by the sentencing judge. The application was made in the context of an earlier unrelated sentence being quashed, leading to considerable confusion regarding the nature of the application and the appropriate legal process to follow. The court was required to decide whether the application was an appeal against the sentence or an application under section 59 of the Criminal Appeal Act. The court also needed to determine whether there was a time limit for bringing such an application under the criminal appeal rules, and whether the significant delay in making the application would affect the exercise of the court's discretion.

The court found that the application was not an appeal against the sentence, as there was no ground impeaching the reasons of the sentencing judge. Instead, the application appeared to be an attempt to challenge the sentence under section 59. The court considered the discretionary nature of the application and the extensive delay in making it. The appellant had been at large on a parole order, rendering nugatory decisions of the Parole Authority. The court held that there was no evidence of matters relevant to the exercise of discretion, and that the delay had caused considerable uncertainty around release dates if the application had been made earlier. The court concluded that the application was an attempt to "unscramble the egg" and refused the application in the exercise of its discretion.

The court made no orders as to costs.

Orders