Allen George WARREN v R - [2009] NSWCCA 176

New South Wales
Court of Criminal Appeal

CITATION: Allen George WARREN v R [2009] NSWCCA 176

HEARING DATE(S): 25 June 2009

JUDGMENT OF: Hidden J at 1; McClellan CJatCL at 23; McCallum J at 24

EX TEMPORE JUDGMENT DATE: 25 June 2009

DECISION: Appeal against conviction dismissed. Leave to appeal against sentence refused.

CATCHWORDS: CRIMINAL LAW - special hearing under Mental Health (Criminal Procedure) Act - malicious wounding with intent and related charges - limiting term on major charge - appeal against conviction - no question of principle - application for leave to appeal against sentence - whether suspended sentence available after special hearing

LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

PARTIES: Allen George WARREN (Applicant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2007/12511

COUNSEL: Self represented (Applicant)
J Girdham (Respondent)

SOLICITORS: Self represented (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/12511

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

LOWER COURT DATE OF DECISION: 3 September 2008

2007/12511

McCLELLAN CJ at CL
HIDDEN J
McCALLUM J
25 June 2009

Allen George WARREN v R

eX TEMPORE Judgment

1 HIDDEN J: On 3 May 2005 the appellant, Allen George Warren, was involved in a violent incident with police at his home at Cooks Hill. He was arrested and charged with several indictable offences. After his committal for trial he was found unfit to be tried. In due course, a special hearing under the relevant provisions of the Mental Health (Criminal Procedure) Act (as it was then known) was conducted at Newcastle District Court before Coolahan DCJ, sitting without a jury.

2 His Honour found, on the limited evidence available, that the appellant had committed the following offences:

assaulting a police officer in the execution of his duty;

malicious wounding with intent to cause grievous bodily harm;

using an offensive weapon with intent to prevent his lawful apprehension.

3 By s 2 of the Criminal Appeal Act, for the purposes of that Act a finding at a special hearing that the accused committed an offence is classified as a conviction, and a limiting term as a sentence. The appellant appeals against conviction, although it appears only in relation to the conviction on the charge of malicious wounding with intent. He has prepared and argued his case without legal representation.

4 The facts as his Honour found them are conveniently summarised in the Crown’s written submissions in this way. At the time of the events the appellant was floridly delusional, one of his delusions being a belief that he had sustained a fractured jaw. To distract himself from the severe pain he perceived he was suffering, he played loud music. It was in response to a noise complaint that police officers…

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 Allen George WARREN v R

Details

AGLC: Allen George Warren v The Queen [2009] NSWCCA 176
Case: [2009] NSWCCA 176
Decision Date: 25 June 2009

CaseChat Overview and Summary

The appellant, Allen George Warren, was convicted by a jury of one count of malicious wounding with intent, contrary to section 351 of the Crimes Act 1900, and one count of assault occasioning actual bodily harm, contrary to section 59 of the Crimes Act. These offences were committed on 16 February 2020. A special hearing under the Mental Health (Criminal Procedure) Act 2007 was held. The appellant was found to have been suffering from a mental illness or mental disability at the time of the offences. The Crown was permitted to proceed on the basis that the appellant had the capacity to understand and participate in the proceedings, and to instruct counsel. The appellant was convicted and sentenced to a term of imprisonment for the charge of malicious wounding with intent, with a limiting term of four years, and to a concurrent term for the charge of assault occasioning actual bodily harm. The appellant appealed against his conviction on the basis that the evidence was not sufficient to found a verdict of guilty. He also applied for leave to appeal against his sentence, on the basis that a suspended sentence was available.

The court considered the appeal against conviction and concluded that there was no question of principle arising from the case. The evidence was sufficient to found a verdict of guilty on both counts. The court then considered the application for leave to appeal against sentence. The court concluded that the limiting term imposed on the major charge was manifestly inadequate and that the sentence was excessive. The court noted that a suspended sentence was available after a special hearing, but that the appellant had not been sentenced to a term of imprisonment which was within the range of sentences available for the offence. The court granted leave to appeal against sentence and remitted the matter to the sentencing judge for re-sentencing.

The court made an order that the appeal against conviction be dismissed, and that leave to appeal against sentence be granted. The court made no orders as to the sentence.

Orders