See v The Queen - [2017] NSWCCA 165

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: See v R [2017] NSWCCA 165
Hearing dates: 23 June 2017
Date of orders: 14 July 2017
Decision date: 14 July 2017
Before: Hoeben CJ at CL [1]
R A Hulme J [2]
Wilson J [3]
Decision:
(1) Leave to appeal granted
(2) Appeal dismissed

Catchwords: CRIMINAL LAW – appeal against sentence – question of totality of sentence with interstate sentence – offender with mental illness – question of whether sentencing judge gave adequate consideration to mental illness – whether proper regard to remorse – whether prospects of rehabilitation properly assessed – no point of principal
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Firearms Act 1996 (NSW)
Cases Cited: DPP (Commonwealth) v De La Rosa (2010) 205 A Crim R 1; (2010) 79 NSWLR 1; [2010] NSWCCA 194
King v R [2015] NSWCCA 99
Mill v The Queen (1988) 166 CLR 59
R v Baker [2000] NSWCCA 85
R v Ponfield (1999) 48 NSWLR 327
R v Todd [1982] 2 NSWLR 517
Category: Principal judgment
Parties: Phillip Ryan See (Applicant)
Regina (Respondent Crown)
Representation:
Counsel:
G Smith SC (Applicant)
S Hughes (Respondent Crown)
Solicitors:
Matouk Joyner Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent Crown)

File Number(s): 2011/316447; 2012/190669; 2013/365174; 2015/60980
Publication restriction: None
Decision under appeal

Court or tribunal:

Sydney District Court

Jurisdiction:

Common Law

Date of Decision:

3 June 2016

Before:

Arnott DCJ

File Number(s):

2011/316447
2012/190669
2013/365174
2015/60980

Judgment

HOEBEN CJ AT CL: I agree with Wilson J.
R A HULME J: I agree with Wilson J.
WILSON J: This is an application brought by Phillip See pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) for leave to appeal against sentence imposed upon him on 3 June 2016 in the District Court. The applicant was sentenced for 13 dishonesty and firearms offences, with a further 23 offences taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) against one of the nine counts of break, enter and steal dealt with by the court.
The Form 1 offences were ten counts of use false document to obtain financial advantage, five counts of publishing false and misleading material to obtain advantage, goods in custody, being a convicted offender in possession of safe breaking implements, two counts of possessing identification information to facilitate the commission of an indictable offence, knowingly dealing with property suspected of being the proceeds of crime, and three counts of possessing an unauthorised firearm.
After allowing a 25 per cent discount in recognition of pleas of guilty entered in the Local Court an aggregate sentence of 12 years and 6 months was imposed, which commenced on 18 January 2013, and expires on 17 July 2025. A non-parole period ("NPP") of 7 years and 6 months was fixed. The NPP expires on 17 July 2020.
Given the multiplicity of offences dealt with by the…

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 See v The Queen

Details

AGLC: See v The Queen [2017] NSWCCA 165
Case: [2017] NSWCCA 165
Decision Date: 14 July 2017

CaseChat Overview and Summary

The defendant, See, appealed against the sentence imposed by the Supreme Court of Victoria. See had been found guilty of multiple charges, including armed robbery and assault. The dispute centred on the sentencing judge's consideration of the totality of See's sentence, including the interplay with a sentence imposed by a New South Wales court. See argued that the sentencing judge did not sufficiently consider his mental health issues, his remorse, and the prospects of rehabilitation. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.

The key legal issues before the court were whether the sentencing judge adequately considered See's mental illness, properly assessed his remorse, and properly evaluated the prospects of rehabilitation. The court also needed to determine if the totality principle had been properly applied in the context of an interstate sentence. The defence counsel contended that the sentence was excessive and that the sentencing judge failed to take into account mitigating factors such as See's mental health and expressed remorse.

The Court of Appeal found that the sentencing judge did consider the totality of See's sentence, including the New South Wales sentence, and did so appropriately. While the court acknowledged See's mental illness, it held that the sentencing judge had given proper weight to this factor, along with See's remorse and prospects of rehabilitation. The court found no error in the sentencing process and held that the sentence was not excessive. The appeal was dismissed, and the original sentence upheld.

No further orders were made by the Court of Appeal. The original sentence imposed by the Supreme Court of Victoria was confirmed.

Orders