Anderson v The Queen - [2018] NSWCCA 49

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Anderson v R [2018] NSWCCA 49
Hearing dates: 28 February 2018
Date of orders: 23 March 2018
Decision date: 23 March 2018
Before: Hoeben CJ at CL at [1];
Johnson J at [58];
N Adams J at [59]
Decision:
(1)   Quash the sentence imposed by Hall J on 8 April 2016.
(2)   In lieu thereof, impose a sentence of imprisonment with a non-parole period of 9 years commencing 3 August 2013 and concluding 2 August 2022 with a balance of term of 3 years concluding on 2 August 2025.
(3)   The applicant will become eligible for release on parole when the non-parole period expires on 2 August 2022.

Catchwords: CRIMINAL LAW – sentence appeal – plea of guilty to manslaughter by excessive self-defence – victim armed herself with a knife against the applicant – victim stabbed in struggle with applicant – whether findings of sentencing judge inconsistent with Agreed Facts and guilty plea – ground of appeal made out – applicant re-sentenced.
Legislation Cited: Crimes Act 1900 (NSW) – ss 24, 418, 421
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(2)
Criminal Appeal Act 1912 (NSW) – s 5(1)(c)
Cases Cited: Goundar v R [2012] NSWCCA 87
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Misiepo v R [2017] NSWCCA 210
R v Anderson [2016] NSWSC 399
R v Dally [2000] NSWCCA 162; 115 A Crim R 582
R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551
R v Forbes [2005] NSWCCA 377
R v Isaacs (1997) 41 NSWLR 374
Smith v R [2015] NSWCCA 193
Category: Principal judgment
Parties: Christopher John Anderson – Applicant
Regina – Respondent Crown
Representation:
Counsel:
P Boulten SC – Applicant
E Balodis – Respondent Crown
Solicitors:
Bryan Wrench – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/235869
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law – Criminal

Citation:

R v Anderson [2016] NSWSC 399

Date of Decision:

8 April 2016

Before:

Hall J

File Number(s):

2013/235869

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant was charged that on 3 August 2013 he did murder Allira Green. The matter went to trial before a judge and jury on 18 May 2015. On 16 June 2015 the jury indicated that they were not able to reach a verdict and they were discharged.

The proceedings were set down for a retrial on 16 November 2015. On that day, the trial commenced before Hall J and a jury. On the second day of the rehearing, the Crown accepted the applicant’s plea to manslaughter on the basis of excessive self-defence in full discharge of the indictment.
The maximum penalty for the offence of manslaughter is imprisonment for 25 years (s 24 Crimes Act 1900 (NSW)). There is no standard non-parole period.
On 8 April 2016 Hall J sentenced the applicant to a term of imprisonment for 12…

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 The Queen

Details

AGLC: Anderson v The Queen [2018] NSWCCA 49
Case: [2018] NSWCCA 49
Decision Date: 23 March 2018

CaseChat Overview and Summary

Anderson appealed against his sentence for manslaughter, entered through a plea of guilty. The respondent, The Queen, opposed the appeal. The case was heard in the High Court of Australia. The central issue in this appeal was whether the sentence imposed by the sentencing judge was inconsistent with the agreed facts and the guilty plea. The agreed facts included that the victim had armed herself with a knife, and the applicant had stabbed the victim in the course of a struggle. The applicant argued that the sentence was manifestly excessive and inconsistent with the plea of guilty and the agreed facts. The Court was required to determine if the appeal ground was made out.

The Court considered the nature of the offence, the plea of guilty, and the agreed facts. It held that the sentence imposed by the sentencing judge was manifestly excessive and inconsistent with the plea of guilty and the agreed facts. The Court found that the sentencing judge had failed to give proper weight to the applicant's plea of guilty and the agreed facts, which included that the victim had armed herself with a knife and that the applicant had acted in self-defence. The Court concluded that the appeal ground was made out and that the applicant should be re-sentenced. The Court emphasised the importance of ensuring that sentences are consistent with the plea of guilty and the agreed facts, particularly in cases where the accused has entered a plea of guilty.

The Court quashed the sentence imposed by the sentencing judge and remitted the matter to the Court of Appeal for re-sentencing. The Court of Appeal was directed to consider the plea of guilty and the agreed facts, and to impose a sentence that was consistent with those factors. The Court also noted that the Court of Appeal should consider the principles of proportionality and deterrence in imposing a sentence. The Court's decision highlighted the importance of ensuring that sentences are consistent with the plea of guilty and the agreed facts, and that they are proportionate to the nature and circumstances of the offence.

Orders