Agnew (a pseudonym) v R [2018] NSWCCA 128

Agnew (a pseudonym) v R [2018] NSWCCA 128

Leave was refused on the plea-discount grounds because the applicant could have pleaded to the s 323(a) charge in the Local Court and no material factual mistake was shown in the sentencing judge's reference to the third day of trial. Leave was granted on the assistance grounds because the sentencing judge erred in rejecting evidence of assistance and then removing the assistance discount. Since error was conceded and further material was before the Court, the Court was required to resentence. Taking the late plea and the totality of assistance, including further assistance that could be considered because sentencing error was established, an overall one-third reduction from an otherwise...

Jurisdiction
Australia
Judgment Date
27 June 2018
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal / Appeal From Sentence Imposed in the District Court on 26 May 2017
Outcome
Leave to appeal granted on the third ground and additional ground, refused on grounds 1 and 2; sentence set aside and applicant resentenced.
Legal Topics
['discount for Guilty Plea' 'assistance to Authorities' 'fresh or Post Sentence Assistance on Appeal' 'resentencing' 'evidence of Assistance to Law Enforcement Authorities']
['criminal Law' 'sentencing' 'criminal Appeals'] ['discount for Guilty Plea' 'assistance to Authorities' 'fresh or Post Sentence Assistance on Appeal' 'resentencing' 'evidence of Assistance to Law Enforcement Authorities']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal / Appeal From Sentence Imposed in the District Court on 26 May 2017

Legal Issues

  1. 1 ['Whether the sentencing judge erred in finding that the applicant pleaded guilty on the third day of a trial.' 'Whether a 12.5% discount for the utilitarian value of the guilty plea was inadequate where the applicant pleaded guilty to a substitute indictment for the lesser offence.' "Whether the applicant's assistance to authorities warranted a lesser sentence and whether evidence of that assistance was wrongly rejected at sentence." 'Whether post-sentencing assistance to authorities could be taken into account on appellate resentencing after sentencing error was established.']

Ratio Decidendi

Leave was refused on the plea-discount grounds because the applicant could have pleaded to the s 323(a) charge in the Local Court and no material factual mistake was shown in the sentencing judge's reference to the third day of trial. Leave was granted on the assistance grounds because the sentencing judge erred in rejecting evidence of assistance and then removing the assistance discount. Since error was conceded and further material was before the Court, the Court was required to resentence. Taking the late plea and the totality of assistance, including further assistance that could be considered because sentencing error was established, an overall one-third reduction from an otherwise...

Court Disposition

Leave to appeal granted on the third ground and additional ground, refused on grounds 1 and 2; sentence set aside and applicant resentenced.

Orders

  • ['Grant the applicant leave to appeal with respect to the third ground of appeal and the additional ground.' 'Otherwise refuse leave to appeal with respect to grounds 1 and 2.' 'Set aside the sentence imposed in the District Court and in place thereof sentence the applicant to 16 months imprisonment, comprising a...