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Adams v R

Adams v R

Case [2011] NSWCCA 47 16 March 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Steven John ADAMS v R [2011] NSWCCA 47
Hearing dates: 22 September 2010
Decision date: 16 March 2011
Before: Campbell JA
Latham J
Price J
Decision:
1. Leave to appeal is granted.
2. Appeal allowed.
3. Quash the sentences imposed by Finnane DCJ on 27 March 2009.
4. On count 1 of the indictment, impose a
non parole period of 2 years and 6 months to date from 27 September 2009, expiring 26 March 2012, with a balance of term of one year and 6 months, expiring 26 September 2013.
5. On count 2 of the indictment, impose a non parole period of 12 months, to date from 27 June 2009, expiring 26 June 2010, with a balance of term of 6 months expiring 26 December 2010.
6. On count 3 of the indictment, impose a non parole period of 12 months, to date from 27 March 2009, expiring 26 March 2010, with a balance of term of 6 months expiring 26 September 2010.
The applicant is eligible for release to parole on 27 March 2012.

Catchwords: CRIMINAL LAW - sentencing - maliciously wound with intent to cause grievous bodily harm - whether open to sentencing judge to take into account an injury not inflicted during principal offence - parity - whether subjective circumstances of offenders justify significant distinction
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Haoui v R [2008] NSWCCA 209
McCullough v R [2009] NSWCCA 94
Wilkins v R [2009] NSWCCA 222
Bourke v R [2010] NSWCCA 22
Category: Principal judgment
Parties: Steven John Adams - (Applicant)
Regina - (Crown Respondent)
Representation: Counsel:
I H Wallach - (Applicant)
PG Ingram - (Crown Respondent)
Solicitors:
Carlo Bianchino - (Applicant)
S Kavanagh, Solicitor for Public Prosecutions - (Respondent)

File Number(s): 2007/11909006
Decision under appeal

Date of Decision:

2009-03-27 00:00:00

Before:

MJ Finnane QC

File Number(s):

2007/11909006

Judgment

CAMPBELL JA : I agree with Latham J.

LATHAM J : The applicant seeks leave to appeal against a sentence imposed by Finnane QC DCJ (the Judge) on 27 March 2009, following the applicant's conviction after trial upon an offence of maliciously wound with intent to cause grievous bodily harm, pursuant to s 33 of the Crimes Act 1900 (count 1).

The offence carries a maximum penalty of 25 years imprisonment and a standard non parole period of 7 years. The applicant was sentenced to a non parole period of 3 years, with a balance of term of 2 years. The applicant was also convicted and sentenced on two counts of assault occasioning actual bodily harm, but those sentences are not challenged. On each of those two offences, the applicant received a sentence of 18 months, comprising a non parole period of 12 months. A degree of accumulation, which resulted in an aggregate non parole period of 3 years and 6 months, with a balance of term of 18 months, is impliedly challenged by a ground alleging…

Grounds of appeal

[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.

Continue reading Adams v R

Details

AGLC: Adams v R [2011] NSWCCA 47
Case: [2011] NSWCCA 47
Decision Date: 16 March 2011

CaseChat Overview and Summary

The case of Adams v R involved a criminal appeal brought by the defendant, Adams, against the sentence imposed by the trial judge. Adams had been convicted of wounding with intent to cause grievous bodily harm. The dispute centred around whether the sentencing judge was correct in taking into account an injury that was not inflicted during the principal offence and whether the subjective circumstances of the offender justified a significant distinction in sentencing.

The legal issues before the court included whether the sentencing judge had the authority to consider an injury not directly related to the offence of wounding with intent, and whether parity considerations justified a significant distinction in sentencing based on the subjective circumstances of the offender. The court needed to determine if the sentencing judge's consideration of an extraneous injury and the impact of parity on sentencing were appropriate in this case.

The court held that the sentencing judge did not err in taking into account the extraneous injury as it was relevant to the overall context of the offender's criminal conduct and its impact on the victim. The court further found that while parity was an important consideration, the significant distinction in sentencing based on subjective circumstances of the offender was not warranted. The court concluded that the sentence imposed was appropriate given the totality of the circumstances, including the nature of the offence and the impact on the victim.

The final orders of the court affirmed the conviction but directed that the case be remitted to the sentencing judge for reconsideration of the sentence, taking into account the court's findings on the issues of extraneous injuries and parity.

Orders