Saunders v The The Queen - [2022] NSWCCA 174

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Saunders v R [2022] NSWCCA 174
Hearing dates: 22 July 2022
Date of orders: 17 August 2022
Decision date: 17 August 2022
Before: Beech-Jones CJ at CL at [1];
Price J at [2];
Lonergan J at [70]
Decision:
1.Leave to appeal granted.
2.Appeal dismissed.

Catchwords:
CRIME – Appeal against sentence – procedural fairness – limited prior criminal history – where written submissions referred to leniency – not raised on oral submissions by the parties or the Judge – whether procedural fairness denied as issue not opened up by the Judge – whether applicant had a legitimate expectation that written submissions would be accepted – discretionary matter for the Judge – whether Judge had made the finding that grounded the appeal – whether leniency extended because of limited prior criminal history

Legislation Cited:
Crimes Act 1900 (NSW), ss 37(1), 59(1)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e)

Cases Cited:
Brown v R [2020] NSWCCA 132
Mustafa v R [2021] NSWCCA 164
Pantorno v The Queen (1989) 166 CLR 466; 38 A Crim R 258; [1989] HCA 18
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Weir v Regina [2011] NSWCCA 123

Category: Principal judgment
Parties: David James Saunders (Applicant)
Regina (Respondent)
Representation:
Counsel:
W Burton (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Fortify Legal (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/339313
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 530

Date of Decision:

12 May 2021

Before:

Bright DCJ

File Number(s):

2017/339313

JUDGMENT

BEECH-JONES CJ at CL: In written submissions before the sentencing judge both parties addressed the relevance of the applicant’s criminal record to the sentencing process. The Crown submitted that the applicant’s criminal record was not such that he “ought to be denied any leniency”. The sentencing judge found that his criminal record disentitled him “to the leniency that would otherwise be available to a person of good character”. Her Honour also found that he had “good prospects of rehabilitation, having regard to … his limited criminal history” and accepted that “he is otherwise of good character”. Hence the sentencing judge did not deny the applicant “any leniency”. Instead, her Honour simply did not afford the full leniency that would otherwise be available to a person of good character. In these circumstances the complaint that the applicant was denied procedural fairness is untenable. I otherwise agree with the reasons of Price J. I agree with the orders his Honour proposes.
PRICE J: The sole ground of appeal upon which the applicant seeks leave to appeal his sentence is:

“The sentencing judge denied the applicant procedural fairness in finding that his criminal history disentitled him to leniency.”

The applicant had been arraigned in the District Court…

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 Saunders v The The Queen

Details

AGLC: Saunders v The The Queen [2022] NSWCCA 174
Case: [2022] NSWCCA 174
Decision Date: 17 August 2022

CaseChat Overview and Summary

Saunders was appealing against a sentence imposed by the Court of Appeal. The primary issue before the court was whether procedural fairness was compromised when the written submissions referred to leniency were not raised during oral submissions by the parties or the Judge. The court had to determine whether the applicant had a legitimate expectation that the written submissions would be accepted and whether it was a discretionary matter for the Judge. Additionally, the court had to decide whether the Judge had made the finding that grounded the appeal and whether leniency was extended because of the applicant's limited prior criminal history.

The court considered that the matter of procedural fairness was not raised during oral submissions and therefore not open to the parties. The applicant's argument that there was a legitimate expectation that written submissions would be accepted was rejected, as it was not the function of the written submissions to frame the issues for the appeal. The court held that it was a discretionary matter for the Judge to determine whether to accept the written submissions, and the Judge had not made the finding that grounded the appeal. Furthermore, the court held that leniency was not extended because of the applicant's limited prior criminal history, but rather because of the mitigating circumstances presented in the case.

The court dismissed the appeal and affirmed the sentence imposed by the Court of Appeal. The court held that the applicant's argument that procedural fairness was compromised was without merit and that the sentence imposed was appropriate. The court also held that the applicant's limited prior criminal history was not the sole factor in the leniency extended, and that other mitigating circumstances were considered in the sentencing process. The appeal was dismissed, and the sentence imposed by the Court of Appeal was upheld.

Orders