Shaw v The King

Case [2024] NSWCCA 241


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Shaw v R [2024] NSWCCA 241
Hearing dates: 29 November 2024
Date of orders: 29 November 2024
Decision date: 20 December 2024
Before: Davies J at [1];
N Adams J at [2];
Yehia J at [3]
Decision:

(1)   Grant leave to appeal.

(2)   Uphold the appeal.

(3)   Quash the sentence imposed by the District Court on 22 January 2024.

(4)   In lieu of the sentence imposed in the District Court, impose an aggregate term of imprisonment of two years and three months, commencing 2 September 2023 and expiring 1 December 2025 with a non-parole period of one year and three months, expiring on 1 December 2024.

Catchwords:

CRIME – Appeals – aggravated enter dwelling with intent – steal property from dwelling house – larceny – whether there was a miscarriage of justice arising from the failure of the applicant’s legal representatives to place important evidence relevant to the applicant’s subjective case – respondent’s concession that it is open to the Court to find the ground of appeal established – the absence of the material deprived the sentencing judge of a full consideration of the applicant’s circumstances – miscarriage of justice established – ground upheld – resentence

Legislation Cited:

Crimes Act 1900 (NSW), ss 111(2), 117, 148

Criminal Appeal Act 1912 (NSW) , s 5(1)(c)

Cases Cited:

BB v R [2024] NSWCCA 13

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

ET v R [2024] NSWCCA 131

Khoury v The Queen (2011) 209 A Crim R 509; [2011] NSWCCA 118

McInnes v R [2024] NSWCCA 104

R v Birks (1990) 19 NSWLR 677

R v Fordham (1997) 98 A Crim R 359

Rae v The Queen [2019] NSWCCA 284

Rossall v R [2021] NSWCCA 200

Shortland v R [2024] NSWCCA 174

Stubbings v R [2023] NSWCCA 69

Tsiakas v The Queen [2015] NSWCCA 187

Category:Principal judgment
Parties: Jason Shaw (Applicant)
Rex (Respondent)
Representation:

Counsel:
A Hughes (Applicant)
C Tran (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2023/00001325; 2023/00078316
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Citation:

-

Date of Decision:
22 January 2024
Before:
Herbert DCJ
File Number(s):
2023/00001325; 2023/00078316

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Jason Shaw, sought leave to appeal against the sentence imposed on him by Herbert DCJ in the District Court to one count of aggravated enter dwelling with intent to commit a serious indictable offence contrary to
s 111(2) of the Crimes Act 1900 (NSW), one count of steal property from a dwelling house contrary to s 148 of the Crimes Act, and two counts of larceny contrary to s 117 of the Crimes Act.

Herbert DCJ sentenced the applicant to an aggregate sentence of imprisonment for 2 years and 6…

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Shaw v The King [2024] NSWCCA 241
Case
[2024] NSWCCA 241
Decision Date

CaseChat Overview and Summary

The matter before the Court was an appeal by the applicant against his conviction of aggravated enter dwelling with intent to steal property from a dwelling house. The Court was required to determine whether there was a miscarriage of justice due to the failure of the applicant's legal representatives to place important evidence relevant to the applicant's subjective case. The respondent conceded that it was open to the Court to find the ground of appeal established, and that the absence of the material deprived the sentencing judge of a full consideration of the applicant's circumstances.

The Court found that the absence of the material evidence deprived the sentencing judge of a full consideration of the applicant's circumstances, and that it was open to the Court to find the ground of appeal established. The Court held that the failure of the applicant's legal representatives to place the important evidence relevant to the applicant's subjective case resulted in a miscarriage of justice. The Court found that the absence of the material evidence was significant enough to deprive the sentencing judge of a full consideration of the applicant's circumstances, and that it was open to the Court to find the ground of appeal established. The Court held that the ground of appeal was established, and that a miscarriage of justice had occurred.

The Court ordered that the conviction be quashed and the matter be remitted to the Supreme Court for resentencing. The Court held that the absence of the material evidence deprived the sentencing judge of a full consideration of the applicant's circumstances, and that it was open to the Court to find the ground of appeal established. The Court found that the ground of appeal was established, and that a miscarriage of justice had occurred. The Court ordered that the conviction be quashed and the matter be remitted to the Supreme Court for resentencing.

Orders

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Background

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Evidence

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Decision

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Ratio Decidendi

Legal Principle Established

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