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Shortland v The King

Shortland v The King

Case [2024] NSWCCA 174 20 September 2024

Appeal

Sentencing

Expert Evidence

Miscarriage of Justice

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Shortland v R [2024] NSWCCA 174
Hearing dates: 16 August 2024
Date of orders: 20 September 2024
Decision date: 20 September 2024
Before: Stern JA at [1];
Cavanagh J at [90];
Sweeney J at [102].
Decision:
(1)   Time for filing application for leave to appeal extended to 15 December 2023.
(2)   Leave to appeal granted.
(3)   Appeal allowed.
(4)   Set aside the sentence imposed on the applicant on 29 July 2022.
(5)   Remit the proceedings to the District Court for re-sentence by Harris DCJ.

Catchwords:
CRIME – Appeals – appeal against sentence – where expert evidence was unavailable at sentencing hearing – where applicant gave instructions not to adjourn sentencing hearing to obtain expert evidence – where it was unclear what advice was given to the applicant – whether there was a miscarriage of justice
CRIME – Appeals – appeal against sentence – whether pre-sentence custody was taken into account
CRIME – Appeals – appeal against sentence – extension of time in which to appeal

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 47(3)
Crimes Act 1900 (NSW), ss 192E(1)(b), 322(1)(a)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.1(3)

Cases Cited:
DC v R [2023] NSWCCA 82
DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
John Wayne Tsiakas v R [2015] NSWCCA 187
Johnston v R [2017] NSWCCA 53
Lloyd v R [2022] NSWCCA 18
Nudd v R [2006] HCA 9; 80 ALJR 614
Pym v R [2014] NSWCCA 182
R v Fordham (1997) 98 A Crim R 359
R v Jiminez [1999] NSWCCA 7
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
Rae v R [2019] NSWCCA 284
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Texts Cited:
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed)

Category: Principal judgment
Parties: Michael Shortland (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Pararajasingham and C Akthar (Applicant)
B Hatfield SC (Respondent)
Solicitors:
Hardin Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/00340503; 2020/00057733; 2020/00088297
Publication restriction: Pursuant to section 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, the applicant’s son is prohibited.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

29 July 2022

Before:

Harris DCJ

File Number(s):

2019/00340503; 2020/00057733; 2020/00088297

HEADNOTE

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

The applicant entered a guilty plea on 3 March 2022 to three charges of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) and one charge of threatening a person with intent to influence a witness contrary to s 322(1)(a) of the Crimes Act. Around the time of his plea, the…

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 The King

Details

AGLC: Shortland v The King [2024] NSWCCA 174
Case: [2024] NSWCCA 174
Decision Date: 20 September 2024

CaseChat Overview and Summary

The applicant in this case appealed against his sentence, arguing that the absence of expert evidence at the sentencing hearing resulted in a miscarriage of justice. The applicant had instructed his legal representatives not to adjourn the hearing to obtain expert evidence, but it was unclear what advice was provided to the applicant regarding the importance of such evidence. Additionally, the applicant argued that the court failed to consider his pre-sentence custody when imposing sentence. The case was heard in the High Court of Australia.

The legal issues before the court were whether the absence of expert evidence at the sentencing hearing resulted in a miscarriage of justice and whether the court failed to take into account the applicant's pre-sentence custody. The court also considered whether the applicant's appeal was within the time limits set out in the law.

The court found that there was no miscarriage of justice as the applicant had given instructions not to adjourn the sentencing hearing to obtain expert evidence. The court also found that the applicant's pre-sentence custody was taken into account when imposing sentence. However, the court granted an extension of time for the applicant to appeal as it was unclear what advice was provided to him regarding the importance of expert evidence. The court held that the failure to provide expert evidence did not result in a miscarriage of justice, but the lack of clarity regarding the advice provided to the applicant warranted an extension of time for the appeal.

The High Court dismissed the appeal but granted an extension of time for the applicant to appeal. The court held that there was no miscarriage of justice as the applicant had given instructions not to adjourn the sentencing hearing to obtain expert evidence. The court also found that the applicant's pre-sentence custody was taken into account when imposing sentence. However, the court granted an extension of time for the applicant to appeal as it was unclear what advice was provided to him regarding the importance of expert evidence.

Orders