Shaw v R

Case [2008] NSWCCA 58 14 March 2008

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New South Wales
Court of Criminal Appeal

CITATION: SHAW, Jason Robert v R [2008] NSWCCA 58

HEARING DATE(S): 6 February 2008

JUDGMENT DATE:
14 March 2008

JUDGMENT OF: McClellan CJ at CL at 1; Grove J at 2; Fullerton J at 3

DECISION: (i) Grant leave to appeal.
(ii) Allow the appeal and quash the sentences imposed in the District Court.
(iii) In lieu thereof, the applicant is sentenced to a non-parole period of two years and six months commencing on 7 April 2007 and expiring on 6 October 2009 with a balance of term of eighteen months expiring on 6 April 2011.

CATCHWORDS: CRIMINAL LAW - LEAVE TO APPEAL AGAINST SENTENCE - plea of guilty - aggravated break, enter and the commission of a serious indictable offence and malicious damage to property - six year term of imprisonment with a four year non-parole period - proportionality - error in the assessment of objective seriousness - error in approach to proper allowance for the plea of guilty - application of Div 1A of Part IV of the Crimes (Sentencing Procedure) Act - approach to s 44(2) of the Crimes (Sentencing Procedure) Act - DOMESTIC VIOLENCE OFFENCES - specific and general deterrence - protection of the community - denunciation of offender’s conduct - relevance of victim’s expression of forgiveness

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

CASES CITED: Hoare v The Queen (1989) 167 CLR 348
Lovell v R; Dominey v R [2006] NSWCCA 222
Markarian v R [2005] HCA 25; 215 ALR 213
R v AJP [2004] NSWCCA 434; 150 A Crim R 575
R v Davies [2004] NSWCCA 319
R v Devine, Supreme Court of Tasmania, Underwood J, 5 July 1993 unreported
R v Dodd (1991) 57 A Crim R 349
R v Glen, Court of Criminal Appeal, 19 December 1994, unreported
R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
R v Johnson [2005] NSWCCA 186
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v Porteous [2005] NSWCCA 115
R v Rice [2004] NSWCCA 384; 150 A Crim R 37
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Tory [2006] NSWCCA 18
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Whyte [2002] NSWCCA 343; 55 NSWLR 252
Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES: Jason Robert Shaw (App)
The Crown (Resp)

FILE NUMBER(S): CCA 2007/3134

COUNSEL: A Haesler SC (App)
G Rowling (Resp)

SOLICITORS: Legal Aid Commission of New South Wales (App)
Director of Public Prosecutions (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/61/0030

LOWER COURT JUDICIAL OFFICER: Woods QC ADCJ

LOWER COURT DATE OF DECISION: 17 May 2007

- 1 -

CCA 2007/3134

McCLELLAN CJ at CL
GROVE J
FULLERTON J

14 MARCH 2008

JASON ROBERT SHAW v R

Judgment

1 McCLELLAN CJ at CL: I agree with Fullerton J.

2 GROVE J: I agree…

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 R [2008] NSWCCA 58
Case: [2008] NSWCCA 58
Decision Date: 14 March 2008

CaseChat Overview and Summary

In the matter of Shaw v R, the respondent appealed against the sentence imposed on him following a guilty plea to aggravated break, enter and the commission of a serious indictable offence, as well as malicious damage to property. The appellant was sentenced to a total of six years imprisonment, with a non-parole period of four years. The appeal was focused on the proportionality of the sentence, with particular attention paid to two alleged errors in the sentencing process.

The court was required to determine whether the primary judge had erred in the assessment of the objective seriousness of the offence, and whether the primary judge had misapplied the principles outlined in Division 1A of Part IV of the Crimes (Sentencing Procedure) Act. In particular, the court needed to consider whether the primary judge had failed to properly account for the appellant's plea of guilty, as well as the requirements of section 44(2) of the Crimes (Sentencing Procedure) Act. The court also had to consider the relevance of the victim's expression of forgiveness in the sentencing process.

In its decision, the court found that the primary judge had erred in the assessment of the objective seriousness of the offence, as well as in the approach to the proper allowance for the plea of guilty. The court held that the primary judge had not properly considered the principles of specific and general deterrence, the protection of the community, and the denunciation of the offender's conduct. The court also found that the victim's expression of forgiveness was not relevant to the sentencing process. As a result, the appeal was allowed and the case was remitted to the primary judge for resentencing.

Orders