APT v The Queen - [2009] NSWCCA 230

New South Wales
Court of Criminal Appeal

CITATION: APT v R [2009] NSWCCA 230

HEARING DATE(S): 17 August 2009

JUDGMENT DATE:
10 September 2009

JUDGMENT OF: Macfarlan JA at 1; Grove J at 2; Hoeben J at 30

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Manslaughter - Sentence - Young offender - Finding by trial judge available on the evidence - No error or miscarriage of sentencing discretion

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987

CATEGORY: Principal judgment

CASES CITED: Jones v R [2009] NSWCCA 169
Markarian v The Queen (2005) 228 CLR 357
R v Baker [2000] NSWCCA 85
R v Bus, unreported 3 November 1995
R v Forbes [2005] 160 A Crim R 1
R v Hearne [2001] 124 A Crim R 451
R v Schelberger, unreported, NSWCCA 2 June 1988

PARTIES: APT - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2007/2185

COUNSEL: C Davenport SC - Applicant
D Arnott SC - Respondent/Crown

SOLICITORS: William O'Brien & Ross Hudson - Applicant
Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2007/2185

LOWER COURT JUDICIAL OFFICER: Studdert AJ

LOWER COURT DATE OF DECISION: 4 April 2008

LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWSC 302

CCA 2007/2185

MACFARLAN JA
GROVE J
HOEBEN J
10 September 2009

APT v R

Judgment

1 MACFARLAN JA:

I agree with Grove J.

2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Studdert AJ in the Supreme Court sitting at East Maitland on 4 April 2008. Following a trial upon an indictment charging murder, the applicant was found not guilty of murder but guilty of manslaughter. In the trial the applicant had sought that verdict on alternative bases which I can briefly refer to as excessive self defence and unlawful and dangerous act. For the purpose of sentence his Honour found that the latter was the basis of conviction for manslaughter to the exclusion of the former. That finding has not been challenged and it accorded with submissions by counsel then appearing for the applicant (who did not appear in the appeal).

3 His Honour assessed a sentence consisting of a non-parole period of five and half years with a balance term of two and half years. The non-parole period was reduced by six weeks to give credit for pre-sentence custody and the resultant sentence was imprisonment for a non-parole period of five years twenty weeks with the balance term of two and half years.

4 The facts found by his Honour were also not disputed. In summary, shortly after midnight on Sunday 12 March 2006 the victim, David Collins, then aged twenty seven years came to a service station to which there was attached a shop, as a passenger in a car which was driven by his sister. It was her purpose in coming there to purchase some cigarettes. The applicant and four friends, two male and two female, came to the service station for the same…

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 APT v The Queen

Details

AGLC: APT v The Queen [2009] NSWCCA 230
Case: [2009] NSWCCA 230
Decision Date: 10 September 2009

CaseChat Overview and Summary

The case of APT v The Queen involved the defendant, APT, who was convicted of manslaughter. The matter was appealed to the High Court of Australia, where the primary focus was on the sentence imposed by the trial judge and whether it was appropriate given the circumstances of the case. The defendant argued that the sentence was excessive and that the trial judge had erred in their sentencing discretion.

The legal issues before the court revolved around the appropriate sentence for a young offender who had been convicted of manslaughter. The court was required to determine whether the trial judge's sentence was available on the evidence and whether there was any error or miscarriage of sentencing discretion. The defendant's counsel argued that the sentence was too severe, taking into account APT's age and the mitigating factors present in the case.

The High Court, in its decision, found that the trial judge had correctly assessed the evidence and had not erred in their sentencing discretion. The court emphasised that the trial judge had considered all relevant factors, including APT's age, background, and the circumstances of the offence. The court held that the sentence imposed was appropriate and that there was no miscarriage of justice in the sentencing process. The appeal was subsequently dismissed, and the original sentence was upheld.

The court's decision in APT v The Queen reaffirms the importance of considering all relevant factors when sentencing a young offender. The High Court found that the trial judge had appropriately balanced the need for punishment and rehabilitation in determining the appropriate sentence for APT. The court's ruling also highlights the principle that a sentence imposed by a trial judge will not be overturned on appeal unless there is a clear error or miscarriage of justice.

Orders