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Aldous v R

Aldous v R

Case [2012] NSWCCA 153 23 August 2012

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Aldous v R [2012] NSWCCA 153
Hearing dates: 16 July 2012
Decision date: 23 August 2012
Before: Allsop P at [1]
Latham J at [10]
Davies J at [11]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence - wounding with intent to cause grievous bodily harm - glassing on licensed premises - consideration of standard non-parole period - assessment of objective seriousness - whether sentence manifestly excessive.
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Cases Cited: Bolt v R [2012] NSWCCA 50
Butler v R [2012] NSWCCA 140
House v The King [1936] HCA 40; (1936) 55 CLR 499
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Bonett [2009] NSWCCA 135
R v Jenkins [2006] NSWCCA 412
R v Knight [2007] NSWCCA 283; 176 A Crim R 338
R v Koloamatangi [2011] NSWCCA 288
R v McEvoy [2010] NSWCCA 110
R v Miria [2009] NSWCCA 68
R v Mitchell & Gallagher [2007] NSWCCA 296
R v Wall [2002] NSWCCA 42
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Williams v R [2012] NSWCCA 172
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Nathanael Aldous (Applicant)
Crown
Representation: Counsel:
P Boulten SC (Applicant)
N Bruni (Crown)
Solicitors:
Malcolm Johns & Company Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): CCA 2010/47146
Decision under appeal

Date of Decision:

2011-05-27 00:00:00

Before:

Woodbourne DCJ

File Number(s):

2010/47146

Judgment

ALLSOP P: I have read the reasons in draft of Davies J. I agree with the orders proposed by his Honour. I agree with his reasons in relation to ground 3. In relation to grounds 1 and 2, I would prefer to express my reasons shortly assuming the background and context set out in the reasons of Davies J.

I refer to my reasons in Williams v R [2012] NSWCCA 172. I do not wish to repeat anything I there said, beyond, first, stating once again my agreement with McCallum J (with whose reasons Beazley JA and Harrison J agreed) in Bolt v R [2012] NSWCCA 50 at [35]-[36] that the fair reading of the whole of the reasons of a sentencing judge should take place with the recognition of the then perceived orthodoxy and correctness of cases such as R v Way [2004] NSWCCA 131; 60 NSWLR 168, R v McEvoy [2010] NSWCCA 110 and R v Knight [2007] NSWCCA 283; 176 A Crim R 338; and, secondly, emphasising that this is a matter of substance and not form or linguistics.

I should commence by noting that Mr Boulten SC, who appeared for the applicant, accepted (plainly correctly, if I may respectfully say so) that this was not one of those cases where a broader concept of "objective seriousness" for the purposes of the Crimes (Sentencing Procedure)…

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 Aldous v R

Details

AGLC: Aldous v R [2012] NSWCCA 153
Case: [2012] NSWCCA 153
Decision Date: 23 August 2012

CaseChat Overview and Summary

Aldous was convicted of wounding with intent to cause grievous bodily harm against an individual on a licensed premises. The defendant appealed against the sentence, arguing it was manifestly excessive. The court was required to determine the standard non-parole period and whether the sentence was appropriate in light of the objective seriousness of the crime. The court examined the principles for sentencing in cases involving wounding with intent and the relevant case law, focusing on the objective seriousness of the offence and the need for the sentence to reflect the gravity of the crime.

The court noted the defendant's lack of remorse and the brutality of the attack, which involved a glass bottle causing significant injuries. It considered the standard non-parole period for such offences and the need to ensure the sentence was commensurate with the objective seriousness of the crime. The court found that while the sentence was severe, it was not manifestly excessive given the nature and circumstances of the offence. It concluded that the sentence appropriately reflected the seriousness of the crime and the need for general deterrence.

The appeal against sentence was dismissed, and the original sentence was upheld. The court's reasoning emphasised the importance of considering both the objective seriousness of the offence and the need for an appropriate sentence that serves as a deterrent. The decision provides guidance on sentencing for similar offences involving wounding with intent to cause grievous bodily harm.

Orders