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Anderson v R

Anderson v R

Case [2008] NSWCCA 211 9 September 2008

Appeal

Sentencing

Standard Non-Parole Period

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New South Wales
Court of Criminal Appeal

CITATION: Anderson v R [2008] NSWCCA 211

HEARING DATE(S): 21 August 2008

JUDGMENT DATE:
9 September 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 28; Hoeben J at 29

DECISION: 1. Grant leave to appeal
2. Dismiss the appeal.

CATCHWORDS: CRIMINAL LAW – Appeal from sentence – Malicious wounding with intent to do grievous bodily harm – Whether sentence excessive – Whether sentencing judge erred in approach to standard non-parole period – Relevance of standard non-parole period when offender has pleaded guilty – Whether sentence was appropriate despite error – Whether special circumstances present – Applicability of principles in R v Fernando in relation to Aboriginality of the offender

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Fernando (1992) 76 A Crim R 58
MLP v The Queen [2006] NSWCCA 271; (2006) 164 A Crim R 93
R v ALP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v McNaughton [2006] NSWCCA 242; (2006) 163 A Crim R 381
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

PARTIES: Robert John Anderson (Applicant)
The Crown

FILE NUMBER(S): CCA 2007/4925

COUNSEL: T Gartelmann (Applicant)
P Calvert (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/51/0144

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 24 October 2007

2007/4925

McCLELLAN CJ at CL
HISLOP J
HOEBEN J
TUESDAY, 9 SEPTEMBER 2008

ANDERSON, Robert John v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty and was convicted of one count of malicious wounding with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900. The maximum penalty for the offence is imprisonment for 25 years. A standard non-parole period of 7 years is provided by the statute.

2 The applicant was sentenced to imprisonment with a non-parole period of 3 years and 9 months with a balance of term of 3 years and 3 months. The non-parole period commenced on 6 March 2007 which was 3 months before the expiration of an unrelated sentence being served by the applicant. The applicant was on bail pending an appeal against the severity of that other sentence when he committed the present offence.

The facts

3 On 21 October 2005 the applicant was drinking at the Royal Hotel at Wardell. The applicant was with a group of friends. One of his friends approached the victim who was sitting at another table. The applicant’s friend struck the victim with a pool cue twice across his face with sufficient force to cause the cue to break. The applicant then grabbed another cue and swung it at the head of the victim causing a 4 cm laceration to the right side of his head. The cue broke…

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 [2008] NSWCCA 211
Case: [2008] NSWCCA 211
Decision Date: 9 September 2008

CaseChat Overview and Summary

The appellant, Anderson, appealed against his sentence for malicious wounding with intent to do grievous bodily harm. The primary issue before the court was whether the sentence imposed was excessive and whether the sentencing judge erred in determining the standard non-parole period, particularly in light of the offender's guilty plea and the relevance of the standard non-parole period in such cases. The court also considered whether, despite any error, the sentence was appropriate and whether special circumstances were present, specifically the Aboriginality of the offender.

The court reviewed the principles set out in R v Fernando, which addresses the applicability of special circumstances in sentencing, including the Aboriginality of the offender. The court examined whether the sentencing judge appropriately considered the principles of R v Fernando and whether the sentence imposed was commensurate with the principles of justice and deterrence. The court held that the sentencing judge had indeed erred in not adequately considering the principles of R v Fernando, particularly in relation to the Aboriginality of the offender. However, the court concluded that despite this error, the sentence was appropriate given the gravity of the offence and the offender's guilty plea. The court found that no special circumstances were present that would warrant a reduction in the sentence.

The court ultimately determined that the sentence was not excessive and upheld the original sentence imposed by the sentencing judge. The court found that the offender's Aboriginality, while a relevant consideration, did not warrant a reduction in the sentence in this case. The appeal was dismissed, and the original sentence was affirmed.

Orders