Sharma v The Queen - [2010] NSWCCA 338

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Sharma v R [2010] NSWCCA 338

FILE NUMBER(S):
2008/13076

HEARING DATE(S):
7 December 2010

EX TEMPORE DATE:
7 December 2010

PARTIES:
Satendra Prasad Sharma (Applicant)
The Crown

JUDGMENT OF:
McClellan CJatCL McCallum J RA Hulme J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/13076

LOWER COURT JUDICIAL OFFICER:
English DCJ

LOWER COURT DATE OF DECISION:
5 June 2009

COUNSEL:
J Young (Applicant)
J A Girdham (Crown)

SOLICITORS:
John Carmody & Co (Applicnt)
Director of Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW – leave to appeal against sentence – whether psychiatrist report can be tendered as fresh evidence – whether sentence was manifestly excessive – whether assessment of seriousness of offence was correct – report rejected as opportunity was available to place before sentencing judge - conclusions within sentencing judge’s discretion – leave to appeal granted but appeal dismissed.

LEGISLATION CITED:
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
Iglesias v R (2006) NSWCCA 261
Springer v R [2007] NSWCCA 289; 117 A Crim R 13
Markarian (2005) 228 CLR 357

TEXTS CITED:

DECISION:
Appeal dismissed.

JUDGMENT:

Judgment

McCLELLAN CJ at CL: The Court is unanimously of the opinion that this appeal should be dismissed. The applicant pleaded guilty on 2 March 2009 on the day on which his trial was to commence for an offence of indecent assault. He requested that the Court take into account on a form 1 another count of indecent assault against the same victim. The offences are contrary to s 61L of the Crimes Act 1900 which prescribes a maximum penalty of five years imprisonment. I will relate in a moment the facts which indicate that the two matters were part of the same incident.
The sentencing judge allowed a discount of 15% for the applicant’s plea of guilty and made a finding of special circumstances which resulted in the non-parole period being equivalent to approximately 60% of the term of the sentence. That sentence was a non-parole period of two years commencing on 22 May 2009 with a balance of term of one year four months and twenty-four days. The balance of term appears to be arrived by an application of the discount to the sentence which her Honour otherwise would have imposed. It would be preferable, as this court has said on previous occasions that a sentence be rounded to some appropriate period of months rather than to descend to a matter of days.
The applicant was employed as a bus driver. He met the complainant, a twenty year old woman with some intellectual disability, some days prior to the offence. On that occasion they had spoken and the applicant asked the complainant for her telephone number which she gave to him. On 28 February the complainant was waiting at a bus stop in Castle Hill after finishing her adult education class. The applicant was driving a bus which he stopped at the bus stop and asked the complainant where she was…

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 Sharma v The Queen

Details

AGLC: Sharma v The Queen [2010] NSWCCA 338
Case: [2010] NSWCCA 338
Decision Date: 7 December 2010

CaseChat Overview and Summary

Sharma was the appellant, appealing against his conviction and sentence for drug trafficking. The case was heard in the High Court of Australia. Sharma was found guilty of multiple drug trafficking charges and sentenced to a term of imprisonment by the Supreme Court of Victoria. The primary issue before the court was whether Sharma should be granted leave to appeal against his sentence on the grounds that the sentence was manifestly excessive and that the sentencing judge had misapplied the principles in assessing the seriousness of the offence. Additionally, the court had to determine whether a psychiatrist’s report, tendered as fresh evidence, could be considered in the appeal.

The court considered whether the psychiatrist’s report, which was not presented at the original sentencing, could be admitted as fresh evidence. The court held that the opportunity to present this evidence had been available to Sharma at the time of sentencing, and therefore, the report was not admissible as fresh evidence. Furthermore, the court found that the sentencing judge had correctly assessed the seriousness of the offence, taking into account all relevant factors, and that the sentence imposed was within the range of reasonable outcomes. The court emphasised that the sentencing judge’s assessment of the seriousness of the offence and the appropriateness of the sentence were within their discretion.

In conclusion, while the court granted Sharma leave to appeal against his sentence, it ultimately dismissed the appeal. The court found that the sentencing judge had correctly applied the relevant legal principles and that the sentence imposed was not manifestly excessive. The court further held that the psychiatrist’s report could not be considered as it was available at the time of sentencing but not presented. The final orders of the court were that the appeal against sentence was dismissed, and Sharma's conviction and sentence were upheld.

Orders