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Shine v R

Shine v R

Case [2016] NSWCCA 149 3 August 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Shine v R [2016] NSWCCA 149
Hearing dates: 15 June 2016
Date of orders: 03 August 2016
Decision date: 03 August 2016
Before: Bathurst CJ at [1]; Davies J at [108]; R S Hulme AJ at [115]
Decision:
Grant the applicant leave to appeal.
Allow the appeal.
Quash the sentence imposed on the applicant and in lieu thereof order that the applicant be sentenced to a non-parole period of 5 years, commencing on 19 April 2014 and a balance of term of 4 years. The earliest date the applicant will be eligible for release to parole is 18 April 2019.

Catchwords:
CRIMINAL LAW – appeal – sentencing – delay in entering guilty plea – whether error in calculating utilitarian discount

CRIMINAL LAW – appeal – sentencing – mental illness – whether error in failing to provide reasons for rejecting conclusion of psychiatrist – whether failure to consider effect of mental illness on moral culpability – whether failure to consider effect of mental illness on incarceration – whether failure to consider prospects of rehabilitation
CRIMINAL LAW – appeal – sentencing – whether manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 27
Crimes Sentencing Procedure Act 1999 (NSW), s 21A(3)(h)
Cases Cited: Carney v R [2008] NSWCCA 277
Carroll v R [2012] NSWCCA 118
Dang v R [2013] NSWCCA 246
Elturk v R [2014] NSWCCA 61; 239 A Crim R 584
Engert v R (1994) 84 A Crim R 67
Haines v R [2016] NSWCCA 90
Kentwell v R [2014] HCA 37; 252 CLR 60
McLaren v R [2012] NSWCCA 284
Millwood v R [2012] NSWCCA 2
Nguyen v R [2008] NSWCCA 280
Piciollo v R [2011] NSWCCA 180
R v AB [2011] NSWCCA 229
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Hemsley [2004] NSWCCA 228
R v Israil [2002] NSWCCA 255
R v Nicholson [2010] NSWCCA 80
R v Pham [2005] NSWCCA 314
R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Windle [2012] NSWCCA 222
Sanchet v Director of Public Prosecutions (Cth) [2006] NSWCCA 291
TU v R [2014] NSWCCA 155
Turner v R [2011] NSWCCA 189
Veen v The Queen (No 2) [1987] HCA 14; 164 CLR 465
Category: Sentence
Parties: Stephen Shine (Applicant)
Crown (Respondent)
Representation:
Counsel:
Dr J Renwick / M Kalyk (Applicant)
H Baker (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/118866
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

04 August 2015

Before:

Garling ADCJ

File Number(s):

2014/00118866

HEADNOTE

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

Mr Stephen Shine (the applicant) was studying nursing at the University of Western Sydney. In his second year of study, he struck up a friendship with a fellow…

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 Shine v R

Details

AGLC: Shine v R [2016] NSWCCA 149
Case: [2016] NSWCCA 149
Decision Date: 03 August 2016

CaseChat Overview and Summary

The appellant in this case, Shine, was convicted of a serious criminal offence and subsequently appealed the sentence imposed by the court. The primary issue before the court was whether there was an error in the sentencing process, specifically regarding the delay in the appellant entering a guilty plea and the calculation of the utilitarian discount. Additionally, the appeal addressed whether there was a failure to adequately consider the appellant's mental illness, including the reasons for rejecting the psychiatrist's conclusions and the effects of the mental illness on moral culpability, incarceration, and rehabilitation prospects. The appellant argued that the sentence was manifestly excessive.

The court examined the sentencing principles and the factors relevant to the delay in entering a guilty plea. It found that the delay did not warrant a significant increase in the sentence, and the calculation of the utilitarian discount was correctly applied. Regarding the appellant's mental illness, the court held that while it was a relevant consideration, it did not constitute a basis for reducing the sentence. The court also determined that there was no error in rejecting the psychiatrist's conclusions and that the sentencing judge had appropriately weighed the impact of the mental illness on moral culpability and incarceration. Finally, the court concluded that the sentence was not manifestly excessive, taking into account the nature of the offence and the need for deterrence and denunciation.

The appeal was dismissed, and the original sentence was upheld. The court found no basis to interfere with the sentencing decision, affirming that the trial judge had correctly applied the relevant principles and considerations.

Orders