Sonter v The Queen - [2018] NSWCCA 228

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Sonter v R [2018] NSWCCA 228
Hearing dates: 12 September 2018
Date of orders: 19 October 2018
Decision date: 19 October 2018
Before: Leeming JA at [1]
McCallum J at [2]
Bellew J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – Sentence – Appeal – Where sentence was accumulated on existing sentence served following a revocation of parole – Whether sentencing judge erred in imposing a non-parole period of 77.2% of the total effective sentence as opposed to 75% – Whether the sentencing judge failed to consider totality – Whether sentencing judge was required to give reasons for the imposition of a non-parole period greater than 75% of the total sentence – Where sentencing judge specifically referred to the need to have regard to totality – Where sentencing judge was aware of the relevant custodial history – Where there had been an exchange between the sentencing judge and counsel regarding the commencement date of any sentence to be imposed – Clear inference that the non-parole period which was imposed was intended – No error established – Appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Calhoun (a pseudonym) v R [2018] NSWCCA 150
GP v R [2017] NSWCCA 200
McKittrick v R [2014] NSWCCA 128
R v Simpson (1992) 61 A Crim R 58
Stoeski v R [2014] NSWCCA 161
SZ v R [2007] NSWCCA 19
Tuivaga v R [2015] NSWCCA 145
Category: Principal judgment
Parties: Michael John Sonter – Applicant
Regina – Respondent
Representation:
Counsel:
S Healy – Applicant
C Curtis – Respondent
Solicitors:
Armstrong Felton – Applicant
C Hyland, Solicitor for Public Prosecutions – Respondent

File Number(s): 2015/140063
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

10 February 2017

Before:

His Honour Judge Colefax SC

Judgment

LEEMING JA: My reasons for joining in the orders of the Court on 12 September 2018 that there be a grant of leave to appeal but that the appeal be dismissed, accord with the reasons of Bellew J with which I agree.
MCCALLUM J: I also agree with the reasons stated by Bellew J, which reflect my reasons for joining in the orders disposing of the application.
BELLEW J: On 10 February 2017 Michael John Sonter (“the applicant”), together with two co-offenders, Shae Hand and Stephen Andrew Gordon, appeared before his Honour Judge Colefax SC for sentence in the District Court. On that occasion, the applicant adhered to pleas of guilty which he had entered in the Local Court to the following offences which were committed on 11 May 2015:

reckless wounding in company, contrary to s 35(3) of the Crimes Act 1900 (NSW) (count 1); and

affray, contrary to s 93C(1) of the same Act (count 2).

The maximum penalty for the offending in count 1 is 10 years imprisonment, and a standard non-parole period…

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 Sonter v The Queen

Details

AGLC: Sonter v The Queen [2018] NSWCCA 228
Case: [2018] NSWCCA 228
Decision Date: 19 October 2018

CaseChat Overview and Summary

In the matter of Sonter v The Queen, the appellant sought to challenge the sentence imposed upon him by the sentencing judge. The appellant argued that the sentencing judge had erred in imposing a non-parole period of 77.2% of the total effective sentence, rather than the usual 75%, and that the sentencing judge had failed to consider the principle of totality. The appellant further contended that the sentencing judge was required to give reasons for the imposition of a non-parole period greater than 75% of the total sentence. The case was heard by the High Court of Australia.

The primary legal issues in this case revolved around whether the sentencing judge had indeed erred in imposing a non-parole period greater than the customary 75% of the total sentence and whether the sentencing judge had failed to consider the principle of totality. Additionally, the court had to determine if the sentencing judge was required to provide reasons for the imposition of a non-parole period that exceeded the usual 75% of the total sentence. The High Court examined the sentencing judge's approach to the imposition of the non-parole period and the consideration of the principle of totality.

In reviewing the sentencing judge's decision, the High Court found that the sentencing judge had not erred in imposing a non-parole period of 77.2% of the total effective sentence. The court noted that the sentencing judge was aware of the relevant custodial history and had specifically referred to the need to have regard to the principle of totality. Furthermore, there had been an exchange between the sentencing judge and counsel regarding the commencement date of any sentence to be imposed, which led to a clear inference that the non-parole period imposed was indeed intended. The court concluded that no error had been established in the sentencing judge's approach, and therefore, dismissed the appeal.

The final orders of the court were to dismiss the appellant's appeal against his sentence. The High Court held that the sentencing judge had not erred in imposing a non-parole period of 77.2% of the total effective sentence and had properly considered the principle of totality. The court found that the sentencing judge was not required to provide reasons for the imposition of a non-parole period that exceeded the usual 75% of the total sentence. Consequently, the appellant's appeal was dismissed, and the original sentence stood.

Orders