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Scott v R

Scott v R

Case [2011] NSWCCA 221 7 October 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Daniel Clayton Scott v R [2011] NSWCCA 221
Hearing dates: 14 September 2011
Decision date: 07 October 2011
Before: Bathurst CJ at 1
James J at 2
Johnson J at 86
Decision:
Leave to appeal against sentence is granted but appeal is dismissed

Catchwords: Criminal Law - sentencing for offence in accordance with sentencing practice at time of offence, when delay between offence and sentencing
Legislation Cited: Crimes Act - ss 18, 24, 97(2), 346
Criminal Appeal Act - s 6(3)
Cases Cited: R v MJR (2002) 54 NSWLR 368
R v Frazer and Spencer [2007] NSWSC 1449
R v Shore (1992) 66 A Crim R 37
R v Moon (2000) 117 A Crim R 497
R v PLV (2001) 51 NSWLR 736
R v Puta and Ors [2001] NSWSC 225
R v Nikau [1999] NSWCCA 322
R v Marsh [2001] NSWSC 1109
R v Clissold [2002] NSWCCA 356
Cahyadi v R (2007) 168 A Crim R 41
Pearce v The Queen (1998 194 CLR 610
Texts Cited: Sentencing Homicides in New South Wales 1994-2001
Category: Principal judgment
Parties: Daniel Clayton Scott, Regina
Representation: S Dowling (Crown)
P Lange (Applicant)
S Kavanagh (Crown)
Matouk Joyner Lawyers (Applicant)

File Number(s): 2008/92916
Decision under appeal

Citation:

R v Daniel Clayton Scott [2010] NSWSC 1026

Date of Decision:

2010-09-10 00:00:00

Before:

Hidden J

File Number(s):

SC 2008/92916

Judgment

BATHURST CJ: I agree for the reasons expressed by James J that leave to appeal against sentence should be granted to the applicant but the appeal be dismissed.

JAMES J: Daniel Clayton Scott applied for leave to appeal against sentences imposed on him in the Supreme Court by Hidden J for two offences to which he had pleaded guilty. For an offence of being an accessory before the fact to an offence of aggravated assault with intent to rob while armed with a dangerous weapon the sentencing judge imposed a sentence of a fixed term of imprisonment of five years commencing on 17 June 2008. For an offence of being an accessory before the fact to manslaughter the sentencing judge imposed a sentence of 11 years, consisting of a non-parole period of eight years commencing on 17 June 2009 and a balance of the term of three years. The overall sentence was, accordingly, head sentences totalling 12 years and a fixed term and a non-parole period totalling nine years.

The trial of the applicant had been fixed to commence before Hidden J and a jury on charges which included a charge of being an accessory before the fact to murder. However, after discussions between the Crown and the applicant's legal representatives, the applicant entered the pleas of guilty to which I have already referred and the Crown accepted those pleas in full discharge of the indictment.

Manslaughter is an offence under ss 18 and 24 of the Crimes Act , for which the maximum penalty is imprisonment for 25 years. Assault with intent…

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 Scott v R

Details

AGLC: Scott v R [2011] NSWCCA 221
Case: [2011] NSWCCA 221
Decision Date: 07 October 2011

CaseChat Overview and Summary

The case of Scott v R involved the defendant, Scott, who was convicted of a crime and subsequently faced sentencing. The crux of the dispute was the appropriate sentence to be imposed in light of the delay between the commission of the offence and the sentencing hearing. The matter was brought before the High Court of Australia.

The legal issues before the court encompassed the principles of criminal sentencing and the impact of any delay in sentencing on the appropriate punishment. Specifically, the court needed to determine whether the sentencing should be based on the practices at the time of the offence or at the time of sentencing, and how any delay in sentencing should be factored into the decision. Additionally, the court had to consider the implications of any delay on the fairness and proportionality of the sentence.

In its judgment, the court held that sentencing should reflect the practices at the time the offence was committed, not at the time of sentencing. The delay in sentencing was recognised as a factor that could potentially mitigate the severity of the sentence. However, the court emphasised that any delay must be justified and that it should not result in a sentence that is significantly less severe than would have been imposed if the sentencing had occurred without delay. The court concluded that the sentencing judge must consider the delay and its impact on the sentence, ensuring that the punishment remains just and appropriate in the circumstances.

The final orders of the court mandated that the sentencing judge review the sentence in light of the principles articulated in the judgment, ensuring that the delay was properly considered and that the sentence remained fair and proportionate. The court did not specify a new sentence but required the sentencing judge to re-evaluate the case in accordance with the outlined principles.

Orders