McClellan CJ at CL at [1] Johnson J at [2] Garling J at [94]
Decision:
Leave to appeal against sentence granted. Appeal dismissed.
Catchwords:
CRIMINAL LAW - appeal - sentence - causing grievous bodily harm with intent to cause grievous bodily harm - plea of guilty - juvenile offender - unprovoked attack upon innocent stranger - victim punched repeatedly to the face - prone victim then kicked and stomped on the head - victim sustains traumatic brain injury - permanent cognitive impairment - applicant had no prior criminal history - troubled and dysfunctional background - head sentence of seven years with three year non-parole period - whether head sentence manifestly excessive - objective gravity of offence - relevance of youth, rehabilitation, specific and general deterrence - head sentence not manifestly excessive - appeal dismissed
Counsel: Ms HLA Cox (Applicant) Ms TL Smith (Respondent) Solicitors: Aboriginal Legal Service (NSW/ACT) Limited (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2010/226909
Decision under appeal
Date of Decision:
2011-09-09 00:00:00
Before:
Keleman DCJ
File Number(s):
2010/226909 2010/120960
Judgment
McCLELLAN CJ at CL: I agree with Johnson J.
JOHNSON J: The Applicant, AM, seeks leave to appeal against sentence imposed at the Parramatta District Court on 9 September 2011 for an offence of causing grievous bodily harm with intent to cause grievous bodily harm, contrary to s.33(1)(b) Crimes Act 1900.
The…
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.
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Details
AGLC
AM v R [2012] NSWCCA 203
Case
[2012] NSWCCA 203
Decision Date
CaseChat Overview and Summary
The applicant, AM, appealed against the sentence imposed by the County Court of Victoria, contending that the head sentence of seven years imprisonment with a non-parole period of three years was manifestly excessive. The dispute arose from an unprovoked attack on an innocent stranger, where the applicant punched the victim repeatedly in the face, then kicked and stamped on the victim's head while they were prone. The victim sustained a traumatic brain injury, resulting in permanent cognitive impairment. The applicant had no prior criminal history but came from a troubled and dysfunctional background. The County Court assessed the objective gravity of the offence, considering the youth of the offender, potential for rehabilitation, and the aims of specific and general deterrence in determining the sentence.
The court was required to determine whether the head sentence was manifestly excessive, taking into account the severity of the offence, the circumstances of the offender, and the purposes of sentencing. The court needed to balance the objective gravity of the offence with the mitigating factors of the offender's youth and potential for rehabilitation. Additionally, the court had to consider the need for specific deterrence, to discourage the applicant from reoffending, and general deterrence, to deter others from committing similar offences.
The Court of Appeal held that the head sentence was not manifestly excessive. The court found the attack to be of high objective gravity, given the unprovoked nature and the severe injuries inflicted on the victim. Despite the mitigating factors, the court determined that the sentence imposed was appropriate to achieve the purposes of sentencing, including deterrence and denunciation. The appeal was dismissed, affirming the sentence imposed by the County Court.