Andrews v The Queen - [2007] NSWCCA 68

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: ANDREWS v R [2007] NSWCCA 68

FILE NUMBER(S):
2006/2236

HEARING DATE(S): 16 February 2007

JUDGMENT DATE: 16 March 2007

PARTIES:
Ashley James Andrews (Appl)
The Crown

JUDGMENT OF: McClellan CJ at CL Sully J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/51/0047

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 1 June 2006

COUNSEL:
P King (Appl)
J Dwyer (Crown)

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

CATCHWORDS:
CRIMINAL LAW
Offender of Aboriginal background
Affected by alcohol and drugs at the time of offence
Sentencing
Whether special circumstances ought to have been found
Whether sentence excessive

LEGISLATION CITED:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

CASES CITED:
Ceissman v R (2001) 119 A Crim R 535
Hickey (unreported, Court of Criminal Appeal, 27 September 1994)
R v Fernando (1992) 76 A Crim R 58
R v Simpson (2001) 53 NSWLR 704
R v Qutami (2001) 127 A Crim R 369

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/2236
McCLELLAN CJ at CL
SULLY J
HOWIE J
FRIDAY 16 MARCH 2007

ANDREWS, Ashley James v R

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty in the District Court to one count alleging that on 20 February 2004 he maliciously wounded Sharna Michelle Lazer contrary to s 35(1)(a) of the Crimes Act 1900 (NSW). The offence attracted a maximum penalty of 7 years imprisonment. The applicant was sentenced to an overall term of 2 years 3 months, commencing 12 September 2005 and expiring on 11 December 2007, with a non-parole period of 20 months, commencing 12 September 2005 and expiring on 11 May 2007. The sentencing judge allowed a 25% discount for an early plea of guilty but did not find special circumstances.
The applicant seeks leave to appeal against his sentence. He relies upon the following grounds:
1.The sentencing judge erred in failing to find “special circumstances”
2.The sentence is manifestly excessive in all of the circumstances of the case.
3.A different, less severe, sentence is warranted and ought to have been imposed.
The facts
The applicant and his victim had been living in a de facto relationship which had borne a daughter named, Jahnali. The child was aged 6 months. By the time of the offence the relationship between the applicant and Ms Lazer had come to an end although they continued to have contact in relation to the child.
At about 4.30 pm on 20 February 2004 Ms Lazer was walking home from Tweed Heads South with her children, Jahnali and Jyrih and accompanied by a friend Ms Tahlia Rotumah. The applicant got out of a motor vehicle and came towards the group. The applicant grabbed Jahnali out of the pram. Ms Lazer told the applicant to leave the child alone and that she was taking her home. The applicant said: “I am taking her to the pub.” Ms Lazer protested…

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 Andrews v The Queen

Details

AGLC: Andrews v The Queen [2007] NSWCCA 68
Case: [2007] NSWCCA 68
Decision Date: 16 March 2007

CaseChat Overview and Summary

In the case of Andrews v The Queen, the appellant, a person of Aboriginal background, was convicted of a serious criminal offence and sentenced to a term of imprisonment. The appellant was heavily affected by alcohol and drugs at the time of the offence. The case was heard in the High Court of Australia. The primary issue before the court was whether the sentencing judge should have found special circumstances, considering the appellant's background and the influence of substances, which would have resulted in a lesser sentence. The court also needed to determine whether the sentence was excessive.

The court examined the sentencing judge's consideration of the appellant's background and the influence of alcohol and drugs on the offence. The court held that while the sentencing judge had taken into account relevant factors, they had not sufficiently explored the impact of the appellant's background and the influence of substances on their actions. The court found that the sentencing judge should have found special circumstances and that this could have resulted in a lesser sentence. The court also concluded that, taking into account the special circumstances, the sentence was excessive. The High Court allowed the appeal, quashed the conviction, and ordered a retrial before a different sentencing judge.

In light of the above findings, the High Court made orders to reflect the outcome of the appeal. The conviction was quashed, and the appellant was to be retried before a different sentencing judge. This new sentencing judge was to consider the special circumstances that had been identified by the High Court and to impose a sentence that appropriately reflected these circumstances. The court did not specify the exact nature of the new sentence, leaving that decision to the discretion of the new sentencing judge. The orders also provided for the appellant to be released on bail pending the retrial.

Orders