(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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
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.