Warner (aka Jeremy Pachenko) v R - [2013] NSWCCA 10

Court of Criminal Appeal

New South Wales

Case Title: Warner (AKA Jeremy Pachenko) v Regina

Medium Neutral Citation: [2013] NSWCCA 10

Hearing Date(s): 27/11/2012

Decision Date: 13 February 2013

Before: Hoeben JA at [1]
Davies J at [2]
Campbell J at [3]

Decision: 1. Leave to appeal granted.
2. Appeal dismissed.

Legislation Cited: -Crimes Act 1900 (NSW)
-Crimes (Sentencing Procedure) Act 1999 (NSW)
-Criminal Appeal Act 1912 (NSW)
-Criminal Procedure Act 1986 (NSW)

Cases Cited: -BP v R. [2010] NSWCCA 159; 201 A Crim R 379
-Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280
-Dare v Pulham [1982] HCA 70; 148 CLR 658
-Gommesen v R. [2012] NSWCCA 226
-Hall v Van der Poel [2009] NSWCA 436
-Hili v the Queen [2010] HCA 45; 242 CLR 520
-Markarian v the Queen [2005] HCA 25; 228 CLR 357
-Minister for Immigration and Ethnic Affairs v Wu [1996] HCA 6; 185 CLR 259
-Muldrock v The Queen [2011] HCA 39; 244 CLR 120
-Pearce v The Queen [1998] HCA 57; 194 CLR 610
-R. v Fernando (1992) 76 A Crim R 58
-R. v. Harris (2007) 171 A Crim R 267
-R. v Logan [2012] QCA 210
-R. v Majors (1991) 27 NSWLR 624
-R. v Mason [2005] NSWCCA 403;
-R. v. Merrin (2007) 174 A Crim. R 100
-R. v Mills [1998] 4 VR 235
-R v. XX (2009) 195 A Crim R 38
-R. v Salameh (1991) 55 A Crim R 384
-R. v Simpson [2001] NSWCCA 534; 53 -NSWLR 704
-Veen v The Queen [No. 2] [1988] HCA 14; 164 CLR 465
-Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816
-Wong v The Queen [2001] HCA 64; 207 CLR 584 at 605

Category: Principal judgment

Parties: John Warner (Applicant)
Crown (Respondent)

Representation

- Counsel: Counsel:
A. Francis (Applicant)
M. Cinque (Crown)

- Solicitors: Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/387013

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Judge Black Q.C.

- Date of Decision: 27 July 2011

- Court File Number(s): 2010/387013

JUDGMENT

Hoeben JA: I agree with Campbell J.
Davies J: I agree with Campbell J.
Campbell J: The applicant seeks leave to appeal against sentences imposed upon him by his Honour Judge Black Q.C. in the District Court of New South Wales at Lismore on 22nd July 2011. The offences, to which he pleaded guilty at the first available opportunity, occurred on 21st November 2010. They were two charges of the same nature occurring at different places on the same day. Each of them was contrary to s.112(2) Crimes Act 1900 (NSW). Each involved breaking into a shop, in company, causing some damage and stealing a relatively modest amount of property, on the first charge, principally alcohol; and in the second,…

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

Case: [2013] NSWCCA 10
Decision Date: 13 February 2013

CaseChat Overview and Summary

John Warner, also known as Jeremy Pachenko, appealed against his sentence in the Court of Criminal Appeal of New South Wales. Warner pleaded guilty to two counts of breaking and entering a shop in company, causing damage and stealing property. The District Court of New South Wales at Lismore imposed a sentence of three years for the first offence, and three years for the second offence, with the sentences to run concurrently. Warner appealed against his sentence on several grounds, including the accuracy of his criminal record, the failure to identify reasons for increasing or reducing the standard non-parole period, and that the sentence was manifestly excessive. The Court of Criminal Appeal dismissed the appeal. The court held that the sentencing judge had not misapprehended the facts or erred in principle in his treatment of Warner's background and antecedent criminal history. The court found that the sentencing judge had applied the correct principle and that the sentence was not manifestly excessive. However, the court found that the sentencing judge had inverted the process mandated by the concluding sentence of Pearce v The Queen, by first fixing a total or overall sentence and then fashioning individual sentences for each offence to justify a result already arrived at. The court held that this was an error of principle, but found that no other sentence was warranted in law. The appeal was dismissed, and leave to appeal was granted.

Orders