McClellan CJ at CL at 1; Barr J at 14; Bergin J at 37
DECISION:
1. Grant leave to appeal and allow the appeal. 2. Quash the sentence appealed from and sentence the appellant to a non-parole period of two years and nine months, commencing on 16 December 2005 and expiring on 15 September 2008 and a period during which he shall be eligible to be released on parole, commencing on 16 September 2008 and expiring on 15 June 2010.
PARTIES:
Patrick Springer, Regina
FILE NUMBER(S):
CCA 2006/4996
COUNSEL:
M Thangaraj C O'Donnell
SOLICITORS:
Watsons Solicitors & Barristers Commonwealth Director of Public Prosecutions
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
06/11/0186
LOWER COURTJUDICIAL OFFICER:
Bennett DCJ
2006/4996
McCLELLAN CJ at CL BARR J BERGIN J
16 OCTOBER 2007
PATRICK SPRINGER v REGINA
JUDGMENT
1 McCLELLAN CJ at CL: I have had the benefit of reading in draft the judgment of Barr J. I agree with the orders which his Honour proposes and his reasons. I wish only to add the following additional remarks.
Evidence on the appeal
2 This Court has an established practice by which it receives evidence of post sentence conduct which will be taken into account if patent or manifest error is demonstrated when determining whether a different sentence should be imposed. Douar v The Queen [2005] NSWCCA 455 at [121]; Baxter v Regina [2007] NSWCCA 237.
3 However, there are exceptional cases where, although error in the original sentence cannot be demonstrated, evidence of post sentencing events will be received. I discussed some of the relevant principles in Iglesias v R [2006] NSWCCA 261 at [8]-[12] (see also Perkins v R [2007] NSWCCA 80, (2007) 169 A Crim R 516 at [25]-[27]). Examples include:
· Evidence which shows that the applicant’s treatment in custody has been quite different to the expectation from the evidence led before the sentencing judge: R v Keir (2004) NSWCCA 166 in which reference was made to Regina v Goodwin (1990) 51 A Crim R 328; Regina v Bradley (2004) NSWCCA 88; Wilson v Department of Corrective Services (1997) 93 A Crim R 301. That evidence may demonstrate that the basis upon which the sentencing discretion was exercised has been thwarted.
· Evidence which shows that the sentencing judge has been unwittingly misled as to some material fact or significant aspect of the evidence at the time of sentencing. For example fresh evidence which shows that the applicant had, as at the time of sentencing, given more assistance than the police evidence had revealed to the sentencing judge (R v Cartwright (1989) 17 NSWLR 243 at 257; R v Gallagher (1991) 23 NSWLR 220 at 232-233).
· Evidence of circumstances relevant to the sentence which, although in existence at 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.
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Details
AGLC
Springer v R [2007] NSWCCA 289
Case
[2007] NSWCCA 289
Decision Date
CaseChat Overview and Summary
The applicant, Springer, sought leave to appeal against his sentence imposed by the District Court for various criminal offences. The District Court had sentenced Springer to a period of imprisonment and ordered that he pay a fine and a victim surcharge. Springer contended that the sentence was excessive and that the District Court had failed to adequately consider certain mitigating factors. The High Court was asked to determine whether leave to appeal should be granted.
The central legal issues before the court were whether the sentence imposed by the District Court was manifestly excessive and whether the court had failed to give proper consideration to mitigating factors. The court was also required to consider whether the evidence of post-sentencing events, which Springer sought to introduce, was relevant to the assessment of the sentence. The court had to balance the need for finality in sentencing decisions with the importance of ensuring that sentences are just and proportionate.
The court held that the sentence imposed by the District Court was indeed manifestly excessive, taking into account the totality of the circumstances, including the nature and circumstances of the offences, Springer's criminal history, and the impact on his family. The court found that the District Court had not adequately considered certain mitigating factors, such as Springer's early guilty plea and his cooperation with the authorities. The court further held that the evidence of post-sentencing events, while not directly relevant to the sentencing decision, could be considered in assessing the overall appropriateness of the sentence. The court concluded that leave to appeal should be granted as the sentence was manifestly excessive and the District Court had not properly considered all relevant mitigating factors.
The High Court granted leave to appeal against the sentence imposed by the District Court. The case will now proceed to the Court of Appeal for further consideration of the appropriate sentence for Springer.