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Usher v R

Usher v R

Case [2016] NSWCCA 276 2 December 2016

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Usher v R [2016] NSWCCA 276
Hearing dates: 02 August 2016
Decision date: 02 December 2016
Before: Hoeben CJ at CL at [1]
Button J at [2]
N Adams J at [3]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: CRIMINAL LAW – application for leave to appeal against sentence – aggravated break, enter and commit serious indictable offence (larceny) – whether applicant has a justifiable sense of grievance by reason of disparity with sentence imposed on co-offender – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 112(2), 113(2), 193B(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
Cases Cited: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Barbaro v The Queen; Zirill v The Queen (2014) 253 CLR 58; [2014] HCA 2
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
Johnson v R (2004) 78 ALJR 616; [2004] HCA 15
Lowndes v The Queen (1999) 195 CLR 665; HCA 19
Ma and Pham v R [2007] NSWCCA 240
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Marshall v R [2007] NSWCCA 24
Mill v The Queen (1988) 166 CLR 59; [1998] HCA 70
MM v R [2016] NSWCCA 235
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Ngati v R [2013] NSWCCA 203
Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57
R v Huynh [2005] NSWCCA 220
R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Category: Principal judgment
Parties: Richard Usher (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms R Rodger (Applicant)
Ms N Williams (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/314650
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

27 February 2015

Before:

Norrish QC DCJ

File Number(s):

2013/314650

Judgment

HOEBEN CJ at CL: I agree with N Adams J and the order which she proposes.
BUTTON J: I agree with N Adams J.
N ADAMS J: On 27 February 2015, the applicant was sentenced by Norrish QC DCJ at the District Court in Goulburn in relation to the following offences:

Aggravated break, enter and commit serious indictable offence (larceny) contrary to s 112(2) of the Crimes Act 1900 (NSW). That offence has a maximum penalty of imprisonment for 20 years and a standard non-parole period (“SNPP”) of imprisonment for five years (Count 1).

Dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act. That offence has a maximum penalty of imprisonment for 15 years (Count…

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 Usher v R

Details

AGLC: Usher v R [2016] NSWCCA 276
Case: [2016] NSWCCA 276
Decision Date: 02 December 2016

CaseChat Overview and Summary

The applicant, Usher, sought leave to appeal against his sentence for committing a serious indictable offence while breaking and entering a dwelling. The offence was classified as aggravated larceny. His co-offender received a significantly lesser sentence, prompting Usher to argue that his sentence was manifestly excessive and that there was a justifiable sense of grievance due to the disparity in sentencing between him and his co-offender. The court had to determine whether the disparity in sentences constituted a justifiable sense of grievance and whether Usher's sentence was manifestly excessive.

The primary legal issue was whether the disparity in sentences between Usher and his co-offender constituted a justifiable sense of grievance. Additionally, the court needed to assess whether Usher's sentence was manifestly excessive, considering the nature of the offence and the principles of sentencing. The court evaluated the circumstances of the offence, the roles of the co-offenders, and the reasons provided for the disparity in sentences. It also examined whether the sentence imposed on Usher was disproportionate when compared to the co-offender's sentence and the relevant sentencing principles.

The court concluded that while there was a notable disparity in the sentences imposed on Usher and his co-offender, it did not amount to a justifiable sense of grievance. The differences in their roles and contributions to the offence were acknowledged, and the reasons provided for the disparity were deemed sufficient. The court found that the sentence imposed on Usher, though harsher, was not manifestly excessive when considering the gravity of the offence and the sentencing objectives. The appeal was dismissed as the sentence was deemed appropriate and within the bounds of judicial discretion.

The court did not grant leave to appeal and upheld the original sentence. Consequently, Usher's application was dismissed, and he was required to serve the sentence as initially imposed.

Orders