Sharpe v The Queen - [2007] NSWCCA 217

New South Wales
Court of Criminal Appeal

CITATION: SHARPE v R [2007] NSWCCA 217

HEARING DATE(S): 22 May 2007

JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 21; Smart AJ at 22

EX TEMPORE JUDGMENT DATE: 22 May 2007

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW – sentence appeal – break and enter with intent to commit serious indictable offence – form 1 matters taken into account – applicant on parole at time of offences – finding by trial judge of a more serious offence than as charged – error accepted by the crown – obligation to sentence based on offences pleaded – whether court of appeal should intervene – whether sentence manifestly excessive

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

CASES CITED: R v McNaughton (2006) 163 A Crim R 381
R v Ponfield (1999) 48 NSWLR 327
The Queen v De Simoni (1981) 147 CLR 383

PARTIES: David Dimitrios Sharpe (Appl)
The Crown

FILE NUMBER(S): CCA 2007/773

COUNSEL: C Craigie SC (Appl)
D M L Woodburne (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/1138

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

LOWER COURT DATE OF DECISION: 25 August 2006

2007/773

McCLELLAN CJ at CL
HISLOP J
SMART AJ
TUESDAY 22 MAY 2007

SHARPE, David Dimitrios v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to an offence in breach of s 113(1) of the Crimes Act 1900 being that:

“On 1 September 2005 at Darling Point in the State of New South Wales, did break and enter a garage, the property of Patricia Ward at 44 Mona Road, Darling Point, with intent to commit a serious indictable offence inside that garage, to wit to steal from the said Patricia Ward.”

2 The offence carries a maximum penalty of 10 years imprisonment. The applicant was sentenced to a non-parole period of two years and a head sentence of three and a half years.

3 When sentenced the applicant asked that three further offences listed on a Form 1 be taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999;

1. maliciously destroy/damage property, to wit, a garage door lock the property of Nick Scali;

2. malicious destroy/damage property, to wit, a garage door lock the property of Peter Tsu;

4 Each of the offences on the Form 1 was committed on 1 September 2005 at the same garage complex as the subject offence.

5 The applicant was arrested at the scene and charged with the offence of aggravated break and enter with intent (in company) in breach of s 113(2) of the Crimes Act 1900, two counts of malicious damage and one count of possession of a housebreaking implement.

6 On 29 November 2005 the applicant entered a plea of not guilty to the count of aggravate break and enter 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 Sharpe v The Queen

Details

AGLC: Sharpe v The Queen [2007] NSWCCA 217
Case: [2007] NSWCCA 217
Decision Date: 22 May 2007

CaseChat Overview and Summary

In the case of Sharpe v The Queen, the appellant appealed against his sentence imposed by the County Court for break and enter with intent to commit a serious indictable offence. The court was required to consider whether the Court of Appeal should intervene in the sentencing decision made by the trial judge, given the trial judge's finding of a more serious offence than that which was charged, an error acknowledged by the Crown. The appellant, who was on parole at the time of the offences, contended that the sentence was manifestly excessive.

The Court of Appeal considered the obligation of the trial judge to sentence based on the offences as pleaded, rather than on the findings of fact made during the trial. The court recognised that the trial judge had erred in taking into account a more serious offence than that which was charged. However, the Crown accepted this error and did not seek to rely on the more serious offence in sentencing. The court had to determine whether it should intervene in the sentencing decision, given the error made by the trial judge and the Crown's concession.

The Court of Appeal held that it should not intervene in the sentencing decision, as the error made by the trial judge did not result in a manifestly excessive sentence. The court found that the sentence imposed was appropriate, taking into account all relevant factors, including the appellant's criminal history and the seriousness of the offence. The court also noted that the Crown did not seek to rely on the more serious offence in sentencing, and that the appellant had not demonstrated that the sentence was manifestly excessive. The Court of Appeal dismissed the appeal.

The Court of Appeal did not make any orders altering the sentence imposed by the County Court. The appellant's sentence remained unchanged.

Orders