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
[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 R
Sign in free to access the full text
Details
AGLC
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.