Citation: Crossgrove (A Pseudonym) v R (No 2) [2019] NSWDC 451
Court: District Court of New South Wales
Date: 31 May 2019
Judge(s): P Taylor SC DCJ
Background
The offender (identified by pseudonym) had pursued appeals against three convictions in the Local Court. As is common practice where multiple conviction appeals are on foot, the offender also lodged a severity appeal, meaning an appeal against the sentences imposed for those three offences.
The conviction appeals were ultimately dismissed. With that outcome, the offender sought leave from the District Court to withdraw the accompanying severity appeal, as there was no longer any basis to pursue it.
The Crown did not seek to be heard on the question of whether leave should be granted.
Legal Issues
- Whether the offender should be granted leave to withdraw the severity appeal following the dismissal of the conviction appeals.
Decision
The District Court observed that lodging a severity appeal alongside multiple conviction appeals is commonly warranted as a protective measure. Success on a conviction appeal in relation to one charge can affect the sentence imposed on the remaining charges, making it prudent to preserve the ability to revisit sentencing.
Given that three convictions were under appeal, the court considered the original decision to file a severity appeal well-founded. The absence of any Crown opposition to the application for leave reinforced the court's inclination to grant it.
Leave was granted, and the sentences originally imposed by the magistrate were confirmed.
Orders Made
- Leave granted to withdraw the appeal against sentence in respect of all three convictions.
- The sentences imposed by the magistrate confirmed.
Key Takeaways
- The District Court confirmed that filing a severity appeal alongside multiple conviction appeals is commonly appropriate, as success on one conviction appeal may have flow-on consequences for sentences imposed on other charges.
- A severity appeal lodged for this protective purpose does not become improper merely because the conviction appeals are ultimately dismissed; withdrawal by leave is the appropriate mechanism once those appeals fail.
- Where the Crown does not oppose an application for leave to withdraw a severity appeal, the court is readily inclined to grant it.
- In granting leave, the court confirmed the original sentences imposed by the sentencing magistrate without further variation.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment.