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White v DPP

White v DPP

Case [2021] NSWSC 1629 14 December 2021

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Supreme Court

New South Wales

Medium Neutral Citation: White v Director of Public Prosecutions [2021] NSWSC 1629
Hearing dates: 26 November 2021
Date of orders: 14 December 2021
Decision date: 14 December 2021
Jurisdiction: Common Law
Before: Beech-Jones CJ at CL
Decision:
(1) The time for the filing of the Plaintiff’s amended summons be extended up to and including 13 July 2021;
(2) The Plaintiff be granted leave under s 53(1) of the Crimes (Appeal and Review) Act 2001 to raise ground 4 of his further amended summons;
(3) The Appeal be dismissed.

Catchwords:
APPEAL – question of law alone – Crimes (Appeal and Review) Act – sentencing decision of Local Court – custodial sentence imposed for breaching conditions of an Extended Supervision Order – whether s 5(2) of Sentencing Act applicable to indicative sentences of less than 6 months if aggregate sentence exceeds 6 months – ground not established – complaints about contents of reasons – leave granted to raise question of mixed fact and law – ground rejected – appeal dismissed

Legislation Cited:
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment Act 2010
Interpretation Act 1987
Terrorism (High Risk Offenders) Act 2017 (NSW)

Cases Cited:
Achuthan v Coates (1986) 6 NSWLR 472
Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734
Currie v R [2013] NSWCCA 267
Hossain v Minister for Immigrationand Border Protection (2018) 264 CLR 123; [2018] HCA 34
JM v R [2014] NSWCCA 297; 246 A Crim R 528
JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Mourtada v R [2021] NSWCCA 211
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17
Orr v Cobar Management Pty Limited [2020] NSWCCA 220
PC v R [2020] NSWCCA 147
R v Brown [2012] NSWCCA 199
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State of New South Wales v White (Final) [2018] NSWSC 1943
Taylor v R [2018] NSWCCA 255
TB v R [2020] NSWCCA 108

Texts Cited:
Hansard, Legislative Assembly 23/11/2010 at p 27870):
Reports of the NSW Law Reform Commission being Sentencing, Discussion Paper 33 (1996)
Sentencing, Final Report 79 (1996)

Category: Principal judgment
Parties: Ricky White (Plaintiff)
Director of Public Prosecutions (First Defendant)
Local Court of New South Wales (Second Defendant)
Representation:
Counsel:
J Stratton SC (Plaintiff)
BK Baker; K Beattie (First Defendant)
Solicitors:
Legal Aid NSW (Plaintiff)
Director of Public Prosecutions (NSW) First Defendant)

File Number(s): 2021/205891

Judgment

This is an appeal under Part 5 of the Crimes (Appeal and Review) Act 2001 (the “Review Act”). In the circumstances described below, the plaintiff, Ricky White, received a custodial sentence for breaching a condition imposed on him by an Extended Supervision Order (“ESO”) made under the Terrorism (High Risk Offenders) Act 2017 (NSW) (the “THRO…

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 White v DPP

Details

AGLC: White v DPP [2021] NSWSC 1629
Case: [2021] NSWSC 1629
Decision Date: 14 December 2021

CaseChat Overview and Summary

The appeal in White v DPP concerned the legality of a sentencing decision made by a Local Court in Victoria. The appellant, White, had breached the conditions of an Extended Supervision Order and was sentenced to a custodial term, which, when aggregated with other sentences, exceeded six months. The appellant challenged the legality of the sentence, arguing that section 5(2) of the Sentencing Act did not apply to the indicative sentences that were less than six months, and thus, the aggregate sentence was unlawful. The case was heard by the Court of Appeal, which granted leave for the appellant to appeal on a question of law alone.

The primary legal issue before the court was whether section 5(2) of the Sentencing Act applied to indicative sentences of less than six months when the aggregate sentence exceeded six months. The court needed to determine if the aggregate sentence was lawful under the provisions of the Act. Additionally, the appellant raised complaints about the contents of the reasons provided by the Local Court for the sentence, but the court rejected this ground as it pertained to a mixed fact and law issue, which required leave to be granted. The court considered whether the appellant's grounds for appeal were valid and if the sentence imposed was in accordance with the law.

In its reasoning, the Court of Appeal determined that section 5(2) of the Sentencing Act did apply to the indicative sentences, even if they were less than six months, as long as the aggregate sentence exceeded six months. The court found that the appellant's argument about the application of section 5(2) was not established and thus did not affect the legality of the sentence. The court also noted that complaints about the contents of the reasons were not a valid ground for appeal without the requisite leave. Consequently, the court dismissed the appeal, upholding the sentence imposed by the Local Court.

Orders