Evans v R [2017] NSWCCA 281

Evans v R [2017] NSWCCA 281

The aggregate sentence was manifestly excessive because the indicative sentence for count 2 was excessive and the substantial effective accumulation was too great. Count 2 was well below the mid-range of seriousness: only 16 text messages constituted the influencing witness offence, they contained no threat of violence, no bribe or inducement, and no proposal that the complainant give false evidence or avoid court by coercion. Although the conduct was serious and occurred in a domestic violence context, it was not properly treated as particularly serious compared with the broader range of conduct captured by s 323(a). The Form 1 treatment of count 1 did not itself disclose error, but the...

Jurisdiction
Australia
Judgment Date
27 November 2017
Procedural Posture
Criminal Sentence Appeal / Application for Extension of Time and Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave granted, appeal against sentence allowed, original aggregate sentence quashed, and applicant re-sentenced to a reduced aggregate sentence.
Legal Topics
['manifest Excess' 'aggregate Sentence' 'indicative Sentences' 'form 1 Offences' 'domestic Violence' 'influencing Witness' 'indecent Assault' 'common Assault' 'contravene Apprehended Domestic Violence Order']
['criminal Law' 'sentencing'] ['manifest Excess' 'aggregate Sentence' 'indicative Sentences' 'form 1 Offences' 'domestic Violence' 'influencing Witness' 'indecent Assault' 'common Assault' 'contravene Apprehended Domestic Violence Order']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Extension of Time and Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the aggregate sentence and non-parole period were manifestly excessive.' 'Whether the indicative sentences for indecent assault, doing an act with intent to influence a witness, and common assault caused error in the aggregate sentence.' 'Whether the indicative sentence for count 2, doing an act with intent to influence a witness, was excessive having regard to the nature of the text messages and absence of threats or inducements.' 'Whether the degree of effective accumulation in the aggregate sentence was too great.']

Ratio Decidendi

The aggregate sentence was manifestly excessive because the indicative sentence for count 2 was excessive and the substantial effective accumulation was too great. Count 2 was well below the mid-range of seriousness: only 16 text messages constituted the influencing witness offence, they contained no threat of violence, no bribe or inducement, and no proposal that the complainant give false evidence or avoid court by coercion. Although the conduct was serious and occurred in a domestic violence context, it was not properly treated as particularly serious compared with the broader range of conduct captured by s 323(a). The Form 1 treatment of count 1 did not itself disclose error, but the...

Court Disposition

Leave granted, appeal against sentence allowed, original aggregate sentence quashed, and applicant re-sentenced to a reduced aggregate sentence.

Orders

  • ['Extend the time for filing the application for leave to appeal to 11 October 2017.' 'Grant leave to appeal against sentence.' 'Allow the appeal against sentence.' 'Quash the aggregate sentence imposed by McLennan SC DCJ on 3 March 2017.' 'Impose an aggregate sentence of imprisonment for 3 years and 6 months to...