Kirk JA at [1]; Button J at [68]; Hamill J at [86]
Decision:
(1) If necessary, grant leave to appeal against conviction.
(2) Dismiss the appeal against conviction.
(3) Grant leave to appeal against the sentence.
(4) Dismiss the appeal against the sentence.
Catchwords:
CRIME — Appeals — Appeal against conviction — Whether jury was properly constituted — 15 jurors empanelled — Jury room did not meet government requirements for 15 jurors — Ballot was conducted to remove 3 of the 15 jurors — Whether power to remove jurors under s 53B(d) Jury Act 1977 (NSW) is confined to a reason pertaining to the individual juror personally — Whether a reason affecting the ability of each and all of the jurors to perform their functions as jurors falls within s 53B(d)
CRIME — Appeals — Appeal against conviction — Application of proviso — Whether error is of a kind that cannot be cured because there was a failure to observe the requirements of the criminal process in a fundamental respect — Error at trial not of that kind — Applicant was tried by a representative and randomly selected jury — Each member of jury was eligible and properly summoned under the Jury Act 1977 (NSW)
CRIME — Appeals — Appeal against sentence — Whether sentencing judge failed to take into account that the COVID-19 pandemic makes conditions of imprisonment more onerous — Whether sentencing judge erred by failing to take into account that the applicant was suffering from a mental illness at the time of offending — Whether sentencing judge erred by failing to take into account that the applicant was particularly vulnerable to safety in prison — Whether sentencing judge erred by punishing the applicant twice for the same conduct — Whether sentencing judge erred by punishing the applicant twice for the same conduct — Whether sentencing judge erred in his exercise of discretion in not including any of the balance of parole already served — Whether sentencing judge erred by making the order that the offender pay to the State of New South Wales a drug proceeds order
Legislation Cited:
Confiscation of the Proceeds of Crime Act 1989 (NSW), s 29
[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
Sun v R [2023] NSWCCA 147
Case
[2023] NSWCCA 147
Decision Date
CaseChat Overview and Summary
The appeal was brought by the appellant, who sought to overturn their conviction and sentence. The appellant argued that the jury that convicted them was not properly constituted as the jury room did not meet government requirements for 15 jurors, and a ballot was conducted to remove three jurors. The appellant further argued that the sentencing judge failed to take into account several mitigating factors, including the impact of the COVID-19 pandemic, their mental illness at the time of offending, and their vulnerability to safety in prison. The appeal was heard in the Court of Criminal Appeal of New South Wales.
The legal issues before the court were whether the power to remove jurors under s 53B(d) of the Jury Act 1977 (NSW) is limited to a reason pertaining to the individual juror personally or whether a reason affecting the ability of each and all of the jurors to perform their functions as jurors falls within s 53B(d). The court also had to determine whether the error in the jury selection process was of a kind that could not be cured because there was a failure to observe the requirements of the criminal process in a fundamental respect. Additionally, the court had to consider whether the sentencing judge erred in their exercise of discretion by not taking into account the mitigating factors and whether the sentence imposed was excessive.
The court held that the power to remove jurors under s 53B(d) of the Jury Act 1977 (NSW) is not limited to a reason pertaining to the individual juror personally but also includes a reason affecting the ability of each and all of the jurors to perform their functions as jurors. The court found that the error in the jury selection process was not of a kind that could not be cured because the appellant was tried by a representative and randomly selected jury, and each member of the jury was eligible and properly summoned under the Jury Act 1977 (NSW). The court also held that the sentencing judge did not err in their exercise of discretion by not taking into account the mitigating factors, as the appellant had not adduced evidence to support their claims. Finally, the court found that the sentence imposed was not excessive and that the appellant's arguments regarding the drug proceeds order were without merit.
The appeal was dismissed, and the conviction and sentence were upheld. The court did not make any orders regarding the drug proceeds order.