AI v R

Case [2011] NSWCCA 95 21 April 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: AI v R; R v SB and AI [2011] NSWCCA 95
Hearing dates: 28 February 2011
Decision date: 21 April 2011
Before: Hodgson JA at 1; Adams J at 85; Hall J at 86
Decision:
AI conviction appeal: appeal dismissed.
SB Crown sentence appeal: appeal dismissed.
AI Crown sentence appeal: appeal dismissed.

Catchwords:
CRIMINAL LAW - Appeal against conviction - Unreasonable verdict - Whether verdicts inconsistent.
CRIMINAL LAW - Crown appeals against sentences - Wounding with intent to do grievous bodily harm - Reckless wounding - Whether error by sentencing judge in assessing objective seriousness - Whether sentences manifestly inadequate - Relevance of youth of offenders - Exercise of discretion.
Legislation Cited: Crimes Act 1900 ss.33; 35
Crimes (Sentencing Procedure) Act 1999 ss.21A, 54B
Cases Cited: BP v R [2010] NSWCCA 159
Curtis v R [2007] NSWCCA 11
R v DGP [2009] NSWSC 1154
Gillard v R [2003] HCA 64; (2003) 219 CLR 1
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Mulato v R [2006] NSWCCA 282
Vaelia v R [2010] NSWCCA 113
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Category: Principal judgment
Parties:
2009/72037:
AI (appellant)
Regina (respondent)

2009/72038:
Regina (appellant)
SB (respondent)
2009/72037:
Regina (appellant)
AI (respondent)
Representation: Counsel:
V LYDIARD (Crown)
I McLACHLAN (AI)
J TREVALLION (SB)
Solicitors:
S Kavanagh (Solicitor for Public Prosecutions)
Sharanica Danieli Lawyers (SB)
Jessop & Storm (AI)

File Number(s): 2009/72037; 2009/72038
Decision under appeal

Date of Decision:

2010-09-03 00:00:00

Before:

North DCJ

Judgment

HODGSON JA: On 23 March 2010, AI, JB and SB were arraigned before North DCJ on two counts, namely that they:

(1) On 20 March 2009 at Rockdale in the State of New South Wales wounded Jordan Ngatupuna with intent to do grievous bodily harm.

(2) (in the alternative) On 20 March 2009 at Rockdale in the State of New South Wales whilst in the company of each other recklessly wounded Jordan Ngatupuna.

The first charge was bought under s 33(1)(a) of the Crimes Act 1900, and carried a maximum penalty of twenty-five years imprisonment and a seven year standard non-parole period. The second charge was brought under s 35(3) of the Crimes Act , and carried a maximum penalty of ten years imprisonment.

Each defendant pleaded not guilty to both charges, and they were jointly tried before North DCJ and a jury.

On 9 April 2010, the jury returned the following verdicts:

AI: not guilty on count 1, guilty on count 2.

JB: not guilty on both counts.

SB: guilty on count 1.

On 3 September 2010, the trial judge imposed the following sentences:

AI: A non-parole period of 18 months commencing 26 March 2009 and expiring on 25 September 2010, and a parole period of imprisonment of 18 months to expire on 25 March 2012, to be served as a juvenile offender.

SB: A non-parole period of four years commencing on 22 March 2009…

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 AI v R

Details

AGLC: AI v R [2011] NSWCCA 95
Case: [2011] NSWCCA 95
Decision Date: 21 April 2011

CaseChat Overview and Summary

The appeal before the court involved the respondents, AI and another individual, who were convicted of wounding with intent to do grievous bodily harm. The Crown, seeking to appeal the sentences imposed on the respondents, argued that the sentences were manifestly inadequate and did not adequately reflect the objective seriousness of the crimes committed. The case was heard in the High Court of Australia.

The legal issues that the court was required to decide included whether the verdicts of the jury were unreasonable and inconsistent, as well as whether there was an error in the sentencing judge's assessment of the objective seriousness of the crime. The court also needed to consider whether the sentences imposed were manifestly inadequate, taking into account the youth of the offenders, and whether the sentencing judge had exercised their discretion appropriately.

The court held that the verdicts of the jury were not unreasonable or inconsistent. Regarding the sentencing, the court found that there had been an error in the assessment of the objective seriousness of the crime, as the sentencing judge had not properly considered the level of intent and planning involved in the attack. However, the court held that the sentences were not manifestly inadequate, taking into account the youth of the offenders and the exercise of discretion by the sentencing judge. The appeal was ultimately dismissed.

No further orders were made by the court.

Orders