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Shaw v The King

Shaw v The King

Case [2024] NSWCCA 241 20 December 2024

Appeal

Aggravated & Exemplary Damages

Miscarriage of Justice

Criminal Law

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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…

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 The King

Details

AGLC: Shaw v The King [2024] NSWCCA 241
Case: [2024] NSWCCA 241
Decision Date: 20 December 2024

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