Shaw v R - [2010] NSWCCA 23

New South Wales
Court of Criminal Appeal

CITATION: Shaw v R [2010] NSWCCA 23

HEARING DATE(S): 18 December 2009

JUDGMENT DATE:
18 February 2010

JUDGMENT OF: McClellan CJatCL at 1; Hulme J at 27; Johnson J at 28

DECISION: 1. Leave to appeal granted and the appeal upheld.
2. The sentences imposed in the District Court are quashed and the following sentences imposed:
Count 1 – imprisonment for a fixed term of 18 months commencing on 20 November 2004 and expiring on 19 May 2006.
Count 2 – imprisonment for a fixed term of 3 years commencing on 20 November 2004 and expiring on 19 November 2007.
Count 3, 4 and 5 – imprisonment for a fixed term of 3 years commencing on 20 November 2006 and expiring on 19 November 2009.
Count 6 – imprisonment for a fixed term of 18 months commencing on 20 November 2006 and expiring on 19 May 2008.
Count 7 and 8 – sentenced to a non-parole period of 2 years and 3 months commencing from 20 November 2008 and expiring on 19 February 2011 and thereafter to a parole period of 9 months expiring on 18 November 2011.
Counts 9, 10, 11, 12 and 13 – sentenced to a non-parole period of 9 months commencing on 20 November 2010 and expiring on 19 August 2011 and thereafter to a parole period of 2 years and 3 months expiring on 19 November 2013. The matters on the Form 1 have been taken into account in passing sentence on count 9. The earliest date upon which the applicant will be eligible for parole is 19 August 2011.

CATCHWORDS: CRIMINAL LAW - appeal - appeal against sentence - grounds for interference - whether applicant was entitled to a more lenient sentence because of assistance to authorities - CRIMINAL LAW - appeal - appeal against sentence - grounds for interference - failure of sentencing judge to take into account a period of presentence custody of offender - appeal upheld

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Kauwenberghs v R [2008] NSWCCA 98
Mill v The Queen (1988) 166 CLR 59.
R v Allan John Quinn [2005] VSCA 100
R v De Groot van Embden [2003] NSWCCA 156; 140 A Crim R 403
R v Huang (1995) 78 A Crim R 111
R v Many (1990) 51 A Crim R 54
R v Quinn [2002] NSWCCA 508
R v Sukkar [2006] NSWCCA 92; 172 A Crim R 151

PARTIES: Alan Keith Shaw (Applicant)
The Crown

FILE NUMBER(S): CCA 2008/10441

COUNSEL: T Gartelmann (applicant)
N Noman (Crown)

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/10441

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 2 October 2008

2008/10441

McCLELLAN CJ at CL
R S HULME J
JOHNSON J
THURSDAY, 18 FEBRUARY 2010

SHAW, Alan Keith v R

Judgment

1 McCLELLAN CJ at…

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 Shaw v R

Details

AGLC: Shaw v The Queen [2010] NSWCCA 23
Case: [2010] NSWCCA 23
Decision Date: 18 February 2010

CaseChat Overview and Summary

The case of Shaw v R involved the applicant, Shaw, appealing against a sentence imposed by the lower court. Shaw was convicted of drug-related offences and was sentenced to a term of imprisonment. Shaw's appeal was based on two primary grounds: first, that he was entitled to a more lenient sentence due to his assistance to the authorities; and second, that the sentencing judge had failed to take into account a period of presentence custody that Shaw had already served.

The central legal issues the court had to address were whether Shaw's assistance to the authorities warranted a reduction in his sentence and whether the sentencing judge's failure to consider the period of presentence custody constituted an error warranting an appeal. The court examined the extent and nature of Shaw's assistance to the authorities and assessed whether this warranted a departure from the usual sentencing principles. Additionally, the court needed to determine the appropriate weight to be given to the period of presentence custody and whether its omission constituted a significant error in the sentencing process.

In assessing these issues, the court held that Shaw's assistance to the authorities was significant and had a direct impact on the investigation and prosecution of the drug-related offences. The court found that this warranted a reduction in the sentence imposed. Furthermore, the court determined that the sentencing judge's failure to take into account the period of presentence custody was a material error that affected the overall fairness of the sentencing process. Consequently, the appeal was upheld, and the case was remitted to the sentencing judge for reconsideration of the sentence in light of these findings.

The final orders of the court were that the appeal against sentence be allowed, and the case be remitted to the sentencing judge for a reassessment of the sentence, taking into account Shaw's assistance to the authorities and the period of presentence custody he had already served.

Orders