White v R

Case [2016] NSWCCA 190


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: White v R [2016] NSWCCA 190
Hearing dates:4 July 2016
Decision date: 24 August 2016
Before: Bathurst CJ at [1]; Basten JA at [10]; Simpson JA at [43]
Decision:

(1) The time in which to seek leave to appeal extended to 17 February 2016;
(2) Leave to appeal against sentence granted;
(3) Appeal allowed: the applicant be re-sentenced on the offence of armed robbery committed on 8 June 2013, taking into account the offence of armed robbery committed on 7 June 2013, to imprisonment made up of a non-parole period of 3 years and 6 months commencing on 19 June 2014 and expiring on 18 December 2017, with a balance of term of 2 years expiring on 18 December 2019.

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – robbery with offensive weapon – plea of guilty – further offence of robbery with offensive weapon taken into account on Form 1 – concession by defence counsel that offences committed “in company” – whether error in taking into account offences committed in company as an aggravating factor – Crimes (Sentencing Procedure) Act 1999 (NSW), 21(2)(e) – error established – whether failure to give effect to finding of special circumstances justifying departure from statutory ratio of non-parole period – no error established – whether sentence was manifestly excessive due to error in approach to totality principle and failure to take into account delay

 

CRIMINAL LAW – failure by defence counsel to raise arguments before sentencing judge – Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 – whether failure precludes intervention – justice demands intervention – leave to appeal granted – appeal allowed – applicant re-sentenced

STATUTORY INTERPRETATION – construction of “in company” – Crimes (Sentencing Procedure) Act 1999 (NSW), 21(2)(e)
Legislation Cited: Crimes Act 1900 (NSW), ss 97, 105A, 113
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23, 44, 47, 55
Cases Cited: Bayram v R [2012] VSCA 6
Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353
Keane v R [2011] VSCA 156
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Markou v R [2012] NSWCCA 64; 221 A Crim R 48
Martin v R [2016] NSWCCA 104
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v Brett John Kelly [2000] NSWCCA 557
R v Brougham (1986) 43 SASR 187
R v Button; R v Griffen [2002] NSWCCA 159; 54 NSWLR 455
R v Eric John Andrews (NSWCCA, 28 April 1993, unreported)
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Kaiva (NSWCCA, 9 November 1998, unreported)
R v Kerrie-Ellen Robyn Knight [2005] NSWCCA 253; 155 A Crim…

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White v R [2016] NSWCCA 190
Case
[2016] NSWCCA 190
Decision Date

CaseChat Overview and Summary

The case of White v R involved the applicant, who had pleaded guilty to charges of robbery with an offensive weapon. The application for leave to appeal against sentence was made in the New South Wales Court of Criminal Appeal. The applicant sought to challenge the sentence imposed, arguing that the sentencing judge had erred in considering the offences as having been committed "in company" and in failing to give effect to special circumstances justifying a departure from the statutory non-parole period ratio. The applicant also contended that the sentence was manifestly excessive due to errors in applying the totality principle and not taking into account the delay in sentencing.

The legal issues before the court included whether the offences were correctly classified as having been committed "in company" under the Crimes (Sentencing Procedure) Act 1999 (NSW), and whether the sentencing judge had erred in considering this factor as an aggravating element. Another issue was whether the court had failed to properly account for special circumstances that warranted a departure from the statutory non-parole period. Additionally, the court had to consider if the sentence was manifestly excessive due to errors in applying the totality principle and not taking into account the delay in sentencing.

The Court of Criminal Appeal held that an error had indeed been made in considering the offences as having been committed "in company," as it was a matter of statutory interpretation under the Crimes (Sentencing Procedure) Act 1999 (NSW). However, the court found no error in the sentencing judge's failure to give effect to special circumstances justifying a departure from the statutory non-parole period. The court concluded that the sentence was not manifestly excessive, despite the errors identified. The court granted leave to appeal and allowed the appeal, re-sentencing the applicant to address the identified errors.

The final orders of the court included re-sentencing of the applicant to ensure that the errors identified were rectified. The court did not alter the conviction but required the sentencing judge to re-assess the sentence taking into account the errors identified in the original sentencing process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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