SF v R

Case [2022] NSWCCA 216 7 October 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: SF v R [2022] NSWCCA 216
Hearing dates: 8 April 2022
Decision date: 07 October 2022
Before: Simpson AJA at [1];
Hamill J at [2];
Ierace J at [3]
Decision:
(1)   Application for leave to appeal granted.
(2)   Appeal allowed.
(3)   Quash the sentence imposed in the District Court and in lieu thereof sentence the applicant to an aggregate term of imprisonment of 7 years backdated to commence on 29 January 2019 and expiring on 28 January 2026, with a non-parole period of 4 years 2 months. The earliest date the applicant will be eligible for release to parole is 28 March 2023.

Catchwords:
CRIME – Appeals – Appeal against sentence – Covid-19 pandemic – where sentencing judge acknowledged the impact of the Covid-19 pandemic during the proceedings on sentence – where remarks on sentence did not expressly acknowledge the likely impact of Covid-19 on conditions of imprisonment – whether sentencing judge erred by failing to take into account that the Covid-19 pandemic renders conditions of imprisonment more onerous
CRIME – Appeals – Appeal against sentence – Parity – where applicant and a co-offender were each sentenced by a different sentencing judge – whether there is a disparity in the sentence of the applicant and the co-accused that gives rise to a justifiable sense of grievance on the applicant’s behalf – discussion of how the respective ratios of the non-parole period to the head sentence of each co-accused are compared

Legislation Cited:
Crimes Act 1900 (NSW), s 93T
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 44
Drug Misuse and Trafficking Act 1985 (NSW), s 24

Cases Cited:
Church v R [2012] NSWCCA 149
Dunshea v R [2016] NSWCCA 244
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
Li v R [2005] NSWCCA 442
Lin v R [2006] NSWCCA 258
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Moodie v R (2020) 24 A Crim R 87; [2020] NSWCCA 160
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Edwards (1996) 90 A Crim R 510
R v Pearce [2020] NSWCCA 61
Stojanovski v R [2013] NSWCCA 334
Thach v R [2018] NSWCCA 252
Valentine v R [2020] NSWCCA 116

Category: Principal judgment
Parties: SF (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Flood (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Kingston Fox Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/91426
Publication restriction: Pseudonyms used in accordance with non-publication orders made 11 April 2022
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

19 October 2020

Before:

Turnbull SC DCJ

File Number(s):

2018/91426

Judgment

SIMPSON AJA: I agree with Ierace J.
HAMILL J: I have had the advantage of reading the judgement of Ierace J in draft form. I agree that ground 1 is established for the reasons given by his Honour and that 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 SF v R

Details

AGLC: SF v R [2022] NSWCCA 216
Case: [2022] NSWCCA 216
Decision Date: 07 October 2022

CaseChat Overview and Summary

In the case of SF v R, the appellant, SF, appealed against his sentence for a crime committed during the Covid-19 pandemic. The sentencing judge had acknowledged the impact of the pandemic during the proceedings, but the appellant argued that the judge failed to sufficiently consider the likely impact of Covid-19 on the conditions of imprisonment. Additionally, the appellant raised an issue of parity, contending that there was a disparity in his sentence compared to that of a co-accused who had been sentenced by a different judge.

The legal issues before the court were whether the sentencing judge erred by not expressly acknowledging the likely impact of Covid-19 on the conditions of imprisonment and whether there was a disparity in the sentences of the appellant and his co-accused that gave rise to a justifiable sense of grievance. The court was required to determine whether the sentencing judge's failure to expressly acknowledge the impact of Covid-19 on the conditions of imprisonment constituted an error and whether there was a disparity in the sentences that warranted a sense of grievance.

The court held that while the sentencing judge had acknowledged the impact of the Covid-19 pandemic, the failure to expressly acknowledge the likely impact on the conditions of imprisonment did not constitute an error. The court reasoned that the remarks made by the sentencing judge were sufficient to demonstrate an understanding of the potential effects of Covid-19 on the appellant's sentence. Additionally, the court found that there was no disparity in the sentences that gave rise to a justifiable sense of grievance. The respective ratios of the non-parole periods to the head sentences of the appellant and his co-accused were considered, and the court found that the sentences were comparable.

The court dismissed the appeal against the sentence. The appellant was not entitled to a reduction in his sentence on the basis that the sentencing judge failed to expressly acknowledge the likely impact of Covid-19 on the conditions of imprisonment, nor was there a disparity in the sentences that warranted a sense of grievance. The original sentence was upheld.

Orders