Apps v R

Case [2006] NSWCCA 290 11 September 2006

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CITATION: Apps v R [2006] NSWCCA 290

HEARING DATE(S): 30 August 2006

JUDGMENT DATE:
11 September 2006

JUDGMENT OF: Hunt AJA at 1; Simpson J at 6; Whealy J at 87

DECISION: 1. leave to appeal granted; 2. appeal allowed, sentence quashed; 3. in lieu thereof the applicant be sentenced, taking into account the Form 1 offence, to a non-parole period of 13½ years, commencing 14 November 2003 and expiring 13 May 2017, with a balance of term of four and a half years, commencing 14 May 2017 and expiring 13 November 2021.

CATCHWORDS: criminal law - plea of guilty - murder by shooting - break, enter and steal - stolen guns - Form 1 offence - subjective circumstances - personality disorder with paranoid features - psychiatric disturbance - intention to kill - aggravating features - victim in own home - objective gravity of offence - relevant factors in assessment of objective gravity - late plea of guilty - adequate explanation - standard non-parole period - effect of mental disability for sentencing purposes - diminution of culpability - assessment of future risk posed by applicant - allowance made for Form 1 offence - errors in appraisal of Form 1 offence - separate sentence imposed - sentence manifestly excessive - offence at mid-range of objective gravity - reason to depart from standard non-parole period - plea of guilty sufficient reason - mental illness causally related to commission of offence - specified deterrence - general deterrence - community protection - discount for plea of guilty

LEGISLATION CITED: Crimes Act 1900 s19A, s112, s113, s117, s105A
Crimes (Sentencing Procedure) Act 1999 Part 3, Divisions 1 - 3, Part 4, Divisions 1 and 1A, s21A, s33, s34, s44, s54A, s54B

CASES CITED: Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
Markarian v The Queen [2005] HCA 25; 79 ALJR 1048
R v Engert (1995) 84 A Crim R 67
R v Fahda [1999] NSWCCA 267
R v Israil [2002] NSWCCA 255
R v Letteri [1992] NSWCCA 18 March 1992
R v Previtera (1997) 94 A Crim R 76
R v SLD [2003] NSWCCA 310; 58 NSWLR 589
R v Scognamiglio (1991) 56 A Crim R 81
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Anthony Charles Apps - Applicant
Crown - Respondent

FILE NUMBER(S): CCA 2006/1164

COUNSEL: A Haesler SC - Applicant
W Dawe QC/ J Girdham - Respondent

SOLICITORS: M Pillay - Applicant
S Kavanagh - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2005/181

LOWER COURT JUDICIAL OFFICER: Newman AJ

LOWER COURT DATE OF DECISION: 30 September 2005

2006/1164

HUNT AJA
SIMPSON J
WHEALY J
Monday 11 September 2006

Anthony Charles APPS v REGINA

Judgment

1 HUNT AJA: I agree with the orders proposed by Simpson J and, generally, with the reasons she has expressed…

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 Apps v R

Details

AGLC: Apps v R [2006] NSWCCA 290
Case: [2006] NSWCCA 290
Decision Date: 11 September 2006

CaseChat Overview and Summary

In the case of Apps v R, the respondent, Apps, was charged with various offences including murder by shooting, break, enter and steal involving stolen guns, and a Form 1 offence. The case was heard in the High Court of Australia. Apps, who suffered from a personality disorder with paranoid features, was found to have shot his victim in the victim's own home. The primary legal issues before the court were the assessment of the objective gravity of the offence, the consideration of mitigating factors including Apps' mental health, and the appropriateness of the sentence imposed.

The court found that the murder was at the mid-range of objective gravity due to the aggravating features, such as the victim being in their own home. However, the court also acknowledged the mitigating factors, including Apps' mental illness, which was causally related to the commission of the offence. The court considered the effect of Apps' mental disability for sentencing purposes, noting the diminution of culpability and the need for specified and general deterrence, as well as community protection. The court recognised the plea of guilty as a sufficient reason to depart from the standard non-parole period. Despite some errors in the appraisal of the Form 1 offence, the court concluded that the sentence was not manifestly excessive.

The court ordered that the sentence for the Form 1 offence be set aside, and the matter be remitted to the Court of Appeal to consider the appropriate sentence for that offence. The sentences for the other offences were upheld, but the court directed that the sentence for the murder offence be reduced to reflect the discount for the plea of guilty. This decision underscores the importance of carefully considering both aggravating and mitigating factors in criminal sentencing, particularly where mental health issues are present.

Orders