Sheen v R - [2014] NSWCCA 42

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sheen v R [2014] NSWCCA 42
Hearing dates: 18 February 2014
Decision date: 04 April 2014
Before: Macfarlan JA at [1];
Garling J at [22];
RS Hulme AJ at [32]
Decision:
(1) The time for appeal in relation to Mr Sheen's conviction on the s 166 Certificate common assault charge is extended.
(2) The appeal made pursuant to that grant of leave is allowed and that conviction quashed.
(3) The application for leave to appeal against sentence is allowed but the appeal is dismissed.

Catchwords:
CRIMINAL LAW - conviction appeal - appellant inadvertently convicted of both offence of common assault and identical offence on a back up charge under Criminal Procedure Act 1986 (NSW), ss 165 to 169 - conviction on latter quashed
CRIMINAL LAW - sentence appeal - assessment of objective seriousness of offence - whether sentencing judge erred in characterising applicant's role in joint criminal enterprise - whether open to sentencing judge to conclude applicant was the instigator of the joint criminal enterprise - appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), ss 61, 86
Criminal Procedure Act 1986 (NSW), ss 166, 167
Cases Cited: Lowe v The Queen [1984] HCA 46; 154 CLR 606
R v JW [2010] NSWCCA 49; 77 NSWLR 7
R v Wright [2009] NSWCCA 3
Mercael v R [2010] NSWCCA 36
Michael v R [2014] NSWCCA 2
Mulato v R [2006] NSWCCA 282
Category: Principal judgment
Parties: Rikki Sheen (Applicant)
Regina (Respondent)
Representation: Counsel:
T Gartelmann (Applicant)
S Dowling SC (Respondent)
Solicitors:
Matouk Joyner Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/19909
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-01-20 00:00:00

Before:

Freeman ADCJ

File Number(s):

2010/19909

Judgment

MACFARLAN JA: By an indictment dated 9 May 2011 the applicant was charged with the attempted kidnapping of Mr Glen Mara (s 86(2) of the Crimes Act 1900 (NSW)) and the specially aggravated kidnapping of Ms Shari Huggett (s 86(3)) of the Crimes Act). When the matter came before the District Court, the Crown provided the court with a certificate pursuant to s 166(1)(b) of the Criminal Procedure Act 1986 (NSW) stating that, in relation to the first count, the applicant had been charged with "the back up offence" of common assault of Mr Mara (s 61 Crimes Act). This assault was part of the incident that gave rise to the attempted kidnapping charge.

Following plea negotiations, the applicant pleaded guilty on an amended indictment to the offences of common assault of Mr Mara and specially aggravated kidnapping of Ms Huggett. The common assault charge thus replaced the attempted kidnapping charge.

On 20 January 2012 Freeman ADCJ sentenced the applicant in relation to the common assault and specially aggravated kidnapping counts charged in the amended indictment. As well, his Honour sentenced the applicant for the offence of common assault contained in the back up charge. The sentence of imprisonment for a fixed term of three…

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 Sheen v R

Details

AGLC: Sheen v The Queen [2014] NSWCCA 42
Case: [2014] NSWCCA 42
Decision Date: 04 April 2014

CaseChat Overview and Summary

In the case of Sheen v R, the appellant appealed against his conviction for common assault and the sentence imposed following that conviction. The dispute arose from a situation where the appellant was inadvertently convicted of both the offence of common assault and an identical offence on a back up charge under the Criminal Procedure Act 1986 (NSW), sections 165 to 169. The conviction on the latter charge was subsequently quashed. The appellant also appealed against his sentence, arguing that the sentencing judge erred in assessing the objective seriousness of the offence and characterising his role in the joint criminal enterprise. Specifically, the appellant contended that it was not open to the sentencing judge to conclude that he was the instigator of the joint criminal enterprise.

The court was required to determine whether the appellant's conviction on the back up charge was valid, and if not, whether the conviction on the common assault charge should stand. Additionally, the court had to assess whether the sentencing judge erred in characterising the appellant's role in the joint criminal enterprise and in the assessment of the objective seriousness of the offence. The court needed to consider whether the sentencing judge's conclusions were open to them based on the evidence presented.

The court found that the appellant's conviction on the back up charge was invalid and quashed that conviction. The court upheld the conviction on the common assault charge, finding that it was valid. Regarding the sentence appeal, the court determined that the sentencing judge's characterisation of the appellant's role in the joint criminal enterprise and the assessment of the objective seriousness of the offence were open to them based on the evidence. The court dismissed the appeal against the sentence, affirming that the sentencing judge's conclusions were reasonable and appropriate.

The court quashed the appellant's conviction on the back up charge under the Criminal Procedure Act 1986 (NSW), sections 165 to 169, and dismissed the appeal against the sentence. The conviction on the common assault charge remained valid.

Orders