Veale v The The Queen - [2022] NSWCCA 154

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Veale v R [2022] NSWCCA 154
Hearing dates: 6 July 2022
Date of orders: 13 July 2022
Decision date: 13 July 2022
Before: Meagher JA; Fullerton J; Ierace J
Decision:
(1) Grant the appellant leave to appeal from the sentences imposed by the District Court on 15 March 2022.
(2) Allow the appeal on ground 1.
(3) Quash the sentences imposed by the District Court on 15 March 2022.
(4) In lieu of those sentences, impose the following sentences:
(a) In respect of count 2, a term of imprisonment of 3 years commencing on 16 October 2020 and expiring on 15 October 2023; and
(b) In respect of count 3 (and taking into account the s 16BA offence), a term of imprisonment of 2 years and 4 months commencing on 16 October 2020 and expiring on 15 February 2023.
Accordingly the aggregate of the two sentences to be imposed is 3 years.
(5) Order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) that the appellant be released from imprisonment on 15 July 2022 upon his giving security by recognizance of $100 to comply until 15 October 2023 with the conditions set out in [65] below.
(6) Direct that by 5pm on 14 July 2022 the appellant sign a recognizance in the form attached to the judgment in this appeal and marked “A”.

Catchwords:
CRIME – appeals – appeal against sentence – where sentencing judge fixed non-parole period to expire on date of sentence – where judge recommended that applicant be released on that day – whether sentencing judge proceeded on mistaken belief as to operation of parole provisions in Crimes Act 1914 (Cth) – whether judge believed effect of sentence imposed would be that applicant was released to parole on that day

Legislation Cited:
Crimes Act 1914 (Cth), ss 15YR, 16BA, 16F(1), 19AB, 19AC, 19AF(1), 19AH(1), 19AL, 19ALA(1)(f), 19AM(1), 20(1)(b), 20(1B), 20A(5)(c), 20AA, 20AB
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 48, 50
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
Criminal Code Act 1995 (Cth), ss 474.15, 474.17, 474.26
Mental Health (Forensic Provisions) Act 1990 (NSW), s 32(3)(a)

Cases Cited:
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johan v R [2019] NSWCCA 126
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khawaja v Attorney-General (Cth) [2022] FCA 334
R v Muldrock [2010] NSWCCA 106
Whyte v R [2019] NSWCCA 218

Category: Principal judgment
Parties: Richard Veale (Applicant)
Regina (Cth) (Respondent)
Representation:
Counsel:

P Coady with A Bhasin (Applicant)
A McGrath (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2020/210831
Publication restriction: There is a statutory prohibition under Crimes Act 1914 (Cth), s 15YR on the publication without leave of the Court of any matter which identifies or is likely to lead to the identification of the complainant in…

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 Veale v The The Queen

Details

AGLC: Veale v The The Queen [2022] NSWCCA 154
Case: [2022] NSWCCA 154
Decision Date: 13 July 2022

CaseChat Overview and Summary

The case of Veale v The Queen involved the appellant, Veale, who appealed against his sentence. The dispute centred around the sentencing judge's determination of the non-parole period, which was set to expire on the date of the sentence. Additionally, the judge recommended that Veale be released on the same day. The central issue was whether the sentencing judge erred in believing that the effect of the imposed sentence would result in Veale being released to parole on the day of sentencing. This belief was based on a perceived misunderstanding of the parole provisions in the Crimes Act 1914 (Cth).

The court was required to decide whether the sentencing judge's interpretation of the parole provisions was mistaken. Specifically, the court had to examine whether the judge's recommendation for Veale's release on the day of sentencing stemmed from a misunderstanding of how the parole provisions should apply. This involved an analysis of the statutory language and the principles of sentencing as they relate to parole eligibility. The court also considered the judge's overall reasoning and whether any error materially affected the sentence imposed.

The court concluded that the sentencing judge did indeed proceed on a mistaken belief regarding the operation of the parole provisions. The judge believed that Veale would be released to parole on the day of sentencing, which was not in accordance with the correct interpretation of the Crimes Act 1914 (Cth). As a result, the court found that the sentence imposed was flawed due to this misunderstanding. The appeal was allowed, and the case was remitted to the sentencing court for reconsideration of the sentence with proper application of the parole provisions.

The final orders of the court were that the appeal be allowed, the sentence set aside, and the case remitted to the sentencing court for re-sentencing. The court provided detailed guidance to the sentencing court on the correct application of the parole provisions, ensuring that Veale's release conditions were accurately determined in line with the law.

Orders