Courtney v R [2022] NSWCCA 223

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Courtney v R [2022] NSWCCA 223 Hearing dates: 8 June 2022 Date of orders: 14 October 2022 Decision date: 14 October 2022 Before: Meagher JA at [1] Mitchelmore JA at [8] Bellew J at [18] Decision: (1) Leave to appeal is granted. (2) The appeal is dismissed. Catchwords: CRIMINAL LAW – Offences – Sentence – Where applicant pleaded guilty to using an offensive weapon to avoid lawful apprehension or detention – Whether the sentencing judge erred in finding that the offending was aggravated by the fact that victims were police officers – Whether that finding reflected double counting – Whether the legislature specifically intended to protect police in enacting the statutory provision pursuant to which the applicant was charged – Where a number of other legislative provisions conferred a power of arrest on persons other than police – No error established CRIMINAL LAW – Offences – Sentence – Where applicant pleaded guilty to using an offensive weapon to avoid lawful apprehension or detention – Where applicant asked the sentencing judge to take into account an additional matter on a Form 1 of taking and driving a conveyance without consent – Where further matter of driving whilst disqualified contained in a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) – Whether sentencing judge erred by taking into account the Form 1 offence when assessing the objective seriousness of the offence of driving whilst disqualified to which the Form 1 did not attach – Error established leading to the necessity to re-sentence – Serious offending requiring a strong element of general deterrence – Guarded prospects of rehabilitation dependent upon the applicant addressing his drug addiction – No lesser sentence warranted in law – Leave to appeal granted – Appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Customs Act 1901 (Cth) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Migration Act 1958 (Cth) Road Transport Act 2013 (NSW) Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 Aloniu v R [2017] NSWCCA 74 Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Cotter v R [2020] NSWCCA 299 Currie v R [2013] NSWCCA 267 Elyard v R [2006] NSWCCA 43 Mansour v R [2011] NSWCCA 28 Mulato v R [2006] NSWCCA 282 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Bazzi [1999] NSWCCA 346 R v Hamilton (1993) 66 A Crim R 575 R v Perez Court of Criminal Appeal (NSW) 11 December 1991 (unreported) R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 R v Yildiz [2006] NSWCCA 97 Sharpe v R [2006] NSWCCA 255 Trejos v R [2017] NSWCCA 122 Warner v R [2013] NSWCCA 10 Category: Principal judgment Parties: Jack Courtney – Applicant Regina – Respondent Representation: Counsel: T Ramrakha – Applicant A Morris – Respondent