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Shortland v R

Shortland v R

Case [2013] NSWCCA 4 1 February 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shortland v R [2013] NSWCCA 4
Hearing dates: 30 August 2012
Decision date: 01 February 2013
Before: Hoeben JA at [1]
Johnson J at [2]
Button J at [167]
Decision:
1. Grant leave to appeal against sentence.
2. Allow, in part, the appeal against sentences imposed at the Penrith District Court on 20 April 2010.
3. Confirm the sentences imposed with respect to Count 1, Count 2 (including the Form 1 offences), Count 4 and Count 5.
4. Quash the sentence imposed upon Count 6 and, in its place, sentence the Applicant to a non-parole period of two years commencing on 26 February 2011 and expiring on 25 February 2013, with a balance of term of one year commencing on 26 February 2013 and expiring on 25 February 2014.
5. With respect to Count 3, quash the sentence and, in its place, sentence the Applicant to a non-parole period of three years commencing on 26 February 2012 and expiring on 25 February 2015, with a balance of term of three years commencing on 26 February 2015 and expiring on 25 February 2018.
6. The earliest date upon which the Applicant will be eligible for release on parole is 25 February 2015.

Catchwords: CRIMINAL LAW - sentence - violent attack by group of young men on another group of young men - Applicant sentenced first in time in District Court - Applicant sentenced for aggravated robbery in company inflicting grievous bodily harm in company - co-offenders sentenced later in District Court, Local Court and Children's Court - co-offenders sentenced for recklessly causing grievous bodily harm in company - all offenders participants in joint criminal enterprise - Judge and Magistrates who sentenced co-offenders not informed of sentences imposed upon Applicant - remarks on sentence of Applicant's sentencing Judge not supplied to later sentencing Judge and Magistrates - whether Applicant has legitimate sense of grievance - principle of parity or proportionality of sentences - strong desirability that co-offenders be sentenced by same Judge -necessity for remarks on sentence to be provided if related offender to be sentenced by different Judge or Magistrate - duty of Crown to ensure that remarks on sentence provided to different Judge or Magistrate - objective foundation demonstrated for Applicant's sense of grievance - very marked discrepancy between sentences even allowing for different charges and different jurisdictions - lesser sentences imposed upon Applicant
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Children (Criminal Proceedings) Act 1987
Criminal Appeal Act 1912
Cases Cited:
Green v The Queen [2011] HCA 49; 244 CLR 462
R v Govinden [1999] NSWCCA 118
R v Colgan [1999] NSWCCA 292
Jones v The Queen (1993) 67 ALJR 376
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
Dwayhi v R [2011] NSWCCA 67; 205 A Crim R 274
R v Chandler [2012] NSWCCA 135
Arenilla-Cepeda v…

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 Shortland v R

Details

AGLC: Shortland v R [2013] NSWCCA 4
Case: [2013] NSWCCA 4
Decision Date: 01 February 2013

CaseChat Overview and Summary

In the case of Shortland v R, the applicant was sentenced by a District Court judge for his role in a violent attack by a group of young men on another group of young men. The applicant was sentenced for aggravated robbery in company inflicting grievous bodily harm in company. His co-offenders were sentenced later by District Court, Local Court and Children's Court judges for recklessly causing grievous bodily harm in company. All the offenders were participants in a joint criminal enterprise. The judges and magistrates who sentenced the co-offenders were not informed of the sentence imposed upon the applicant, and the remarks on the sentence of the applicant's sentencing judge were not supplied to the later sentencing judges and magistrates. The applicant argued that he had a legitimate sense of grievance due to the principle of parity or proportionality of sentences, the strong desirability that co-offenders be sentenced by the same judge, and the necessity for remarks on the sentence to be provided if a related offender was to be sentenced by a different judge or magistrate. The court considered whether the applicant had an objective foundation for his sense of grievance and whether there was a very marked discrepancy between the sentences imposed upon the applicant and his co-offenders, even allowing for different charges and different jurisdictions.

The legal issues the court was required to decide included whether the applicant had a legitimate sense of grievance and whether the principle of parity or proportionality of sentences applied in this case. The court also considered whether it was necessary for the remarks on the sentence to be provided to a different judge or magistrate if a related offender was to be sentenced. Additionally, the court examined whether there was a duty on the Crown to ensure that remarks on the sentence were provided to a different judge or magistrate.

The court held that the applicant did have a legitimate sense of grievance, and that the principle of parity or proportionality of sentences applied in this case. The court found that it was necessary for the remarks on the sentence to be provided to a different judge or magistrate if a related offender was to be sentenced. The court also held that there was a duty on the Crown to ensure that remarks on the sentence were provided to a different judge or magistrate. The court found that there was a very marked discrepancy between the sentences imposed upon the applicant and his co-offenders, even allowing for different charges and different jurisdictions. The court held that the lesser sentences imposed upon the applicant were unjust and disproportionate to the gravity of the offence. The court concluded that the applicant's sense of grievance was objectively founded and that there was a strong desirability that co-offenders be sentenced by the same judge. The court ordered that the applicant's sentence be reviewed and that the Crown ensure that remarks on the sentence were provided to any future sentencing judges or magistrates.

Orders