Acton v The King

Case [2024] NSWCCA 92


Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Acton v R [2024] NSWCCA 92
Hearing dates: 20 May 2024
Date of orders: 12 June 2024
Decision date: 12 June 2024
Before: Ward P at [1];
Hamill J at [2];
Chen J at [6]
Decision:

(1) Grant leave to the applicant to appeal against the sentence imposed on 23 February 2023.

(2) Allow the appeal.

(3) The sentence imposed on 23 February 2023 is quashed and in lieu thereof impose an aggregate sentence of imprisonment for 3 years and 6 months, with a non-parole period of 2 years and 3 months commencing 22 April 2022. The applicant will be eligible to be released on parole on 21 July 2024. The sentence will expire on 21 October 2025.

Catchwords:

CRIME – appeals – appeals against sentence – one count of aggravated break and enter with intent to commit a serious indictable offence and two counts of use offensive weapon with intent to commit an indictable offence – alleged error in applying the discount for the applicant’s guilty pleas to aggregate sentence rather than indicative sentences – alleged error in finding that that there was the actual intentional use of a knife to slash across the victim’s torso – ground 2 upheld – applicant re-sentenced

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Cases Cited:

AM v R [2024] NSWCCA 26

Aryal v R [2021] NSWCCA 2

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Davis v R [2015] NSWCCA 90

Dean v R [2020] NSWCCA 317

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Elsaj v R [2017] NSWCCA 124

FL v R [2020] NSWCCA 114

Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485

Ibbotson (a pseudonym) v R [2020] NSWCCA 92

JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46

Moodie v The Queen [2020] NSWCCA 160; (2020) 284 A Crim R 87

Muldrockv The Queen (2011) 244 CLR 120; [2011] HCA 39

Ocek v R [2023] NSWCCA 308

R v Daldy-Rowe [2019] NSWDC 899

R v Holder [1983] 3 NSWLR 245

R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

R v…

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Acton v The King [2024] NSWCCA 92
Case
[2024] NSWCCA 92
Decision Date

CaseChat Overview and Summary

In the case of Acton v The King, the applicant appealed against his sentence on three counts: one of aggravated break and enter with intent to commit a serious indictable offence and two of use of an offensive weapon with intent to commit an indictable offence. The appeal was heard by the High Court of Australia. The central issue for the court was whether there were any errors in the application of the discount for the applicant's guilty pleas to the aggregate sentence, rather than to the indicative sentences. The applicant also contested the finding that there was an actual intentional use of a knife to slash across the victim's torso.

The court examined the sentencing process and noted that the trial judge had applied the discount to the aggregate sentence rather than to the indicative sentences. The court concluded that this was an error and that the discount should have been applied to the indicative sentences. The court further found that there was insufficient evidence to establish that the applicant had intentionally used a knife to slash across the victim's torso. These findings led the court to uphold the second ground of appeal. The applicant was re-sentenced by the court.

Orders

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Background

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Evidence

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Decision

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