Sills v R - [2011] NSWCCA 271

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: SILLS v R [2011] NSWCCA 271
Hearing dates: 5 December 2011
Decision date: 14 December 2011
Before: Meagher JA at 1
Hoeben J at 2
Rothman J at 66
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - plea of guilty to accessory and receiving charges - whether sentencing judge erred in failing to rule on defence objections to Statement of Facts - whether applicant sentenced upon facts which disclosed a more serious offence - no error disclosed.
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Madden v R [2011] NSWCCA 254
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
R v De Simoni (1981) 147 CLR 383
R v H [2005] NSWCCA 282
Regina v Laurentiu (1992) 63 A Crim R 402 per Wood J at 415-416
Regina v David Alan Lawless (CCA, unreported, 24 June 1994)
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Uzabeaga [2000] NSWCCA 381
Category: Principal judgment
Parties: Michael Sills - Applicant
Regina - Respondent Crown
Representation: W Hunt - Applicant
MM Cinque - Respondent Crown
B Sandland, Legal Aid Commission - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2009/282912
Decision under appeal

Date of Decision:

2011-06-17 00:00:00

Before:

Coolahan DCJ

File Number(s):

2009/282912

Judgment

MEAGHER JA : I agree with the orders proposed by Hoeben J and with his Honour's reasons.

HOEBEN J :

Offences and sentence

On 9 November 2010 the applicant was arraigned on an indictment containing three counts as follows:

Count 1: On or about 10 August 2008 at Toronto in the State of New South Wales being in a building, namely the Toronto RSL Club at 41 The Boulevard, did therein steal a sum of money and break out of the building.

In the alternative:

Count 2: On or about 10 August 2008 at Toronto knowing that Merrissa Sills committed the serious indictable offence of being in a building, namely the Toronto RSL Club at 41 The Boulevard, did therein steal a sum of money and break out of the building, did receive, harbour, maintain and assist Merrissa Sills contrary to section 112(1)(b)/350 Crimes Act 1900.

Count 3: On 10 August 2008 at Toronto and other places did receive proceeds of crime, being a sum of money in circumstances where he knew that the sum of money was the proceeds of crime, contrary to section 193B(2) Crimes Act 1900.

The applicant entered a plea of not guilty to count 1, but guilty to counts 2 and 3. The pleas of guilty were accepted by the Crown in full satisfaction of the indictment. The maximum penalty provided for count 2 was imprisonment for 5 years and that for count 3 was imprisonment for 15 years.

On 17 June 2011 Coolahan DCJ sentenced the applicant as follows:

Count 2: A fixed term…

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 Sills v R

Details

AGLC: Sills v R [2011] NSWCCA 271
Case: [2011] NSWCCA 271
Decision Date: 14 December 2011

CaseChat Overview and Summary

In the matter of Sills versus The Queen, the applicant appealed against his sentence, contending that the sentencing judge erred in not ruling on objections to the Statement of Facts provided by the prosecution. The applicant had entered a plea of guilty to charges of being an accessory and receiving stolen property. The legal issues for the court to decide included whether the sentencing judge failed to rule on defence objections to the Statement of Facts and whether the applicant was sentenced based on facts that revealed a more serious offence. The court found that there was no error in the sentencing judge's failure to rule on the objections as they did not affect the applicant's substantial rights. Furthermore, the court determined that the applicant was not sentenced upon facts that disclosed a more serious offence. The applicant's appeal was dismissed, and the original sentence was upheld. The court found no basis for altering the sentence imposed by the original sentencing judge.

Orders