R v Carr [2002] NSWCCA 434

Reported Decision : (2002) 135 A Crim R 171

New South Wales Court of Criminal Appeal

CITATION : R v Carr [2002] NSWCCA 434 FILE NUMBER(S) : CCA 60415/02 HEARING DATE(S) : 13/09/2002 JUDGMENT DATE : 1 November 2002

PARTIES : Regina v Peter David Carr JUDGMENT OF : Levine J at 1; Hidden J at 9; Howie J at 10

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 02/31/0084 LOWER COURT JUDICIAL Herron DCJ OFFICER :

COUNSEL : P. Ingram - Crown P. Byrne SC - Respondent SOLICITORS : S.E. O'Connor - Crown Greg Murray, Solicitors - Respondent CATCHWORDS : Criminal Practice and Procedure - Crown Appeal - whether cumulation of sentences required - application of Pearce v The Queen - Seriousness of fraud by solicitors LEGISLATION CITED : Justices Act 1902 - s 51A Crimes Act 1900 - ss 176A, 178A Pearce v The Queen (1998)194 CLR 610 R v Todd [1982] 2 NSWLR 517 CASES CITED: Hammoud (2000) 118 A Crim R 66 R v Institoris [2002] NSWCCA 8 R v AEM (Snr) [2002] NSWCCA 58 Regina v Burke [2002] NSWCCA 353 DECISION : The appeal is dismissed.

IN THE COURT OF CRIMINAL APPEAL 60415/2002

LEVINE J HIDDEN J HOWIE J

FRIDAY 1 NOVEMBER 2002 REGINA v PETER DAVID CARR Judgment 1 LEVINE J: On 13 September each member of the Bench expressed concurrence with an order that the Crown appeal be dismissed. 2 My reasons for coming to this view as to the outcome of the Crown appeal coincide in general terms with those expressed by Howie J. I gratefully accept his Honour's recitation of the factual background and the matters of principle against which the submissions are to be judged. 3 In relation to the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610 and the statement of McHugh, Hayne and Callinan JJ at 624, I expressly state my concurrence with Howie J's statement that what that decision requires is that the sentencing judge fix an appropriate sentence for each offence and then determines whether to accumulate them in whole or in part "to reflect the totality of the criminality" (paragraph 26). This formulation properly reflects, in my respectful view, what is to be understood by the statement of the High Court: "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality" (emphasis added). Using the words of Howie J it can be seen that the statement of the High Court properly can be described as one of "fundamental principle" (see R v AEM (Snr) [2002] NSW CCA 58 paragraph 65). 4 As was said in R v AEM (Snr) at paragraph 70: "The principle of totality can be simply stated. It requires that the effective sentence imposed upon an offender represent a proper period of incarceration for the total criminality involved. In R v Kalache (2000) 111 A Crim R 152, Sully J at 184 quoted from Thomas, Principles of Sentencing , 2nd Ed 1979 at 56-57: "... [the Court] must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences." See also Mill v The Queen (1988) 166 CLR 59 at 62-63".