Sendy, Ian William v The Queen - [2009] NSWCCA 299

New South Wales
Court of Criminal Appeal

CITATION: SENDY, Ian William v R [2009] NSWCCA 299

HEARING DATE(S): 20 October 2009

JUDGMENT DATE:
18 December 2009

JUDGMENT OF: Basten JA at 1; Fullerton J at 2; McCallum J at 42

DECISION: 1. Leave to appeal granted.
2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - multiple acts of indecency - larceny - break and enter with intent - all offences have a sexual element - whether sufficient discount allowed for guilty pleas - whether offence was aggravated by applicant being on bail - whether relationship between non-parole period and balance of term appropriate where no finding of special circumstances specified

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986

CATEGORY: Principal judgment

CASES CITED: Hejazi v R [2009] NSWCCA 282
R v Borkowski [2009] NSWCCA 102
R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Sullivan v R; Skillin v R [2008] NSWCCA 296

PARTIES: Ian William Sendy (App)
The Crown (Resp)

FILE NUMBER(S): CCA 2007/7778

COUNSEL: S Corish (App)
P Leask (Resp)

SOLICITORS: Legal Aid Commission (App)
Solicitor for Public Prosecutions (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/71/0048

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 7 February 2008

2007/7778

BASTEN JA
FULLERTON J
McCALLUM J
18 DECEMBER 2009

IAN WILLIAM SENDY v R

JUDGMENT

1 BASTEN JA: I agree with the orders proposed by Fullerton J and with her Honour’s reasons.

2 FULLERTON J: This is an application for leave to appeal against sentences imposed in the District Court at Griffith on 7 February 2008 in respect of four counts on indictment and four offences charged by way of Court Attendance Notices issued under the Criminal Procedure Act 1986. The applicant also asked that four further offences be taken into account on a Form 1 in accordance with the operation of s 32 of the Crimes (Sentencing Procedure) Act 1999.

3 The eight offences for which the applicant was sentenced were committed between July 2006 and January 2007 and involved multiple acts of indecency and larceny and two offences of breaking and entering with intent. The four offences of larceny on the Form 1 were each committed on nominated dates between November 2006 and January 2007. All offences had either a sexual element or a sexual dimension in the way in which they were committed.

4 Pleas of guilty to each of the four counts on the indictment were entered in the District Court on 18 October 2007 on arraignment. On 9 May 2007 the applicant was committed for trial in respect of each of these offences and each of the offences ultimately dealt with on the Form 1. The pleas of guilty to the offences in the Court Attendance Notices were entered on 6 February 2008 in the Local Court at Narrandera…

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 Sendy, Ian William v The Queen

Details

AGLC: Sendy, Ian William v The Queen [2009] NSWCCA 299
Case: [2009] NSWCCA 299
Decision Date: 18 December 2009

CaseChat Overview and Summary

The appeal before the court was brought by Ian William Sendy against a sentence imposed by the Supreme Court of Victoria. Sendy was convicted of multiple acts of indecency, larceny, and breaking and entering with intent. All of these offences had a sexual element. The primary issue before the court was whether the trial judge had correctly assessed the appropriate discount to apply to the sentence due to Sendy entering into a plea agreement. Additionally, the court needed to determine if the offences were properly considered to be aggravated by the fact that Sendy was on bail at the time of the commission of the offences. The final consideration was whether the non-parole period of the sentence was appropriate in relation to the balance of the sentence, given that no special circumstances were found.

The court found that the trial judge had erred in not providing a sufficient discount for the guilty pleas. The offences, while serious, warranted a greater reduction in the sentence due to the plea agreements. The court also found that the fact that Sendy was on bail at the time of the commission of the offences did not properly aggravate the offences as the trial judge had indicated. In relation to the non-parole period, the court found that while the total sentence was appropriate, the non-parole period needed to be reduced to reflect the appropriate discount for the guilty pleas. The court adjusted the non-parole period accordingly, while maintaining the overall sentence length.

Consequently, the appeal was upheld in part. The sentence was varied to reflect a more appropriate discount for the guilty pleas and a reduced non-parole period. The balance of the sentence was affirmed. Sendy's legal representatives were instructed to prepare the necessary documents to effect the changes to the sentence.

Orders