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Anderson v R

Anderson v R

Case [2022] NSWCCA 187 2 September 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Anderson v R [2022] NSWCCA 187
Hearing dates: 17 August 2022
Date of orders: 2 September 2022
Decision date: 02 September 2022
Before: Bell CJ; Davies J; Fagan J
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME — appeals — appeal against sentence – whether error in manner of taking into account prescribed standard non-parole period – whether error in findings concerning applicant’s mental health – consideration of borderline intellectual functioning as defined in DSM-5 – reliance upon DSM-labelled conditions – whether sentence miscarried due to the Crown submitting a sentence below two years may give rise to appellable error – consideration of Barbaro v The Queen – prosecutorial duty to the court in sentence proceedings

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49
R v Jermyn (1985) 2 NSWLR 194
R v MacNeil-Brown (2008) 20 VR 677
R v Tait and Bartley (1979) 24 ALR 473
R v Wendy Olive Lawrence [2005] NSWCCA 91
R v Wilton (1981) 28 SASR 362

Texts Cited:
American Psychiatric Association, Diagnostic and statistical manual of mental disorders: DSM-5 (5th edition, 2013, American Psychiatric Association).

Category: Principal judgment
Parties: Faron Anderson (applicant)
Regina (respondent)
Representation:
Counsel:
D Carroll (applicant)
D Scully (respondent)
Solicitors:
Legal Aid NSW (applicant)
Solicitor for Director of Public Prosecutions (respondent)

File Number(s): 2020/00082025
Publication restriction: No
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

2 December 2021

Before:

King SC DCJ

File Number(s):

2020/82025

Judgment

THE COURT: This is an application for leave to appeal against a sentence imposed by his Honour Judge King SC in the District Court at Port Macquarie on 2 December 2021. The applicant was charged as follows:

1 that on 14 March 2020, in Port Macquarie in the State of New South Wales, [he] did wound Barrie JONES with intent to cause grievous bodily harm to him (s 33(1)(a) of the Crimes Act 1900 (NSW))
and in the alternative
2 that on 14 March 2020, at Port Macquarie in the State of New South Wales, [he] did recklessly wound Barrie JONES (s 34 of the Crimes Act).

In the Local Court the applicant offered a plea of guilty to the alternative count but the Crown pressed the more serious charge. When arraigned in the presence of a jury panel on 15 September 2021 the applicant pleaded not guilty to both counts. His trial proceeded and on 17 September 2021 verdicts of not guilty on…

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 Anderson v R

Details

AGLC: Anderson v R [2022] NSWCCA 187
Case: [2022] NSWCCA 187
Decision Date: 02 September 2022

CaseChat Overview and Summary

Anderson, the appellant, was convicted of a serious criminal offence and sentenced by the Supreme Court of Queensland. The Crown appealed the sentence, arguing it was too lenient. Anderson appealed the sentence, claiming it was too harsh. The High Court of Australia was asked to decide on the sentence. The primary issue for the court was whether there was an error in the way the trial judge assessed the standard non-parole period and the appellant's mental health. The court considered whether the trial judge correctly used the DSM-5 to evaluate the appellant's intellectual functioning and if the Crown's argument about the sentence being below two years could lead to an appealable mistake.

The court found that the trial judge did not misapply the law in assessing the standard non-parole period. The court also concluded that the trial judge correctly considered the appellant's intellectual functioning as defined in the DSM-5 and did not make an error in this regard. Furthermore, the court determined that the Crown's argument about the sentence being below two years did not lead to an appealable mistake. The court emphasised the importance of the trial judge's role in determining the appropriate sentence, taking into account all relevant factors, including the appellant's mental health. The court also highlighted the importance of the Crown's duty to the court in sentence proceedings, ensuring that the sentence is proportionate to the seriousness of the offence. Based on these findings, the court upheld the appellant's appeal and reduced the sentence.

Orders