Apthorpe v R - [2012] NSWCCA 100

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: APTHORPE v R [2012] NSWCCA 100
Hearing dates: 27/04/2012
Decision date: 21 May 2012
Before: Basten JA at [1]
Johnson J at [2]
Garling J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - Sentence appeal - Affray - Applicant on bond at time of offence - Similar culpability of all five offenders - Error attributing statement during affray to applicant not of substance - Error regarding circumstances of Form 1 offences not of substance - Sentence not manifestly excessive - Four month longer non-parole period to co-offender not marked as clearly unjustifiable - Appeal dismissed
Legislation Cited: Crimes Act 1900, s 93C, s 117, s 195(1)(6)
Crimes (Sentencing Procedure) Act 1999, s 9, s 32, s 44
Criminal Appeal Act 1912, s 6(3)
Cases Cited: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Green v R; Quinn v R [2011] HCA 49, 86 ALJR 36
House v The King [1936] HCA 40; 55 CLR 499
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v George [2004] NSWCCA 247
R v Trevenna [2004] NSWCCA 43
Stewart v R [2009] NSWCCA 152
Vuni v Regina [2006] NSWCCA 171
Category: Principal judgment
Parties: Phillip Apthorpe (applicant)
Regina (respondent)
Representation: F Coyne (applicant)
R Herps (respondent)
Matthew Hammond Solicitors (applicant)
Solicitor for Public Prosecutions (respondent)

File Number(s): 2010/11444
Decision under appeal

Date of Decision:

2011-10-21 00:00:00

Before:

Neilson DCJ

File Number(s):

2010/114442

Judgment

BASTEN JA: I agree with the reasons given by Garling J.

JOHNSON J: I agree with Garling J.

GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of New South Wales by his Honour Judge Neilson on 21 October 2011.

At the conclusion of argument on the hearing of the application, the Court made the following orders:

(1) Leave to appeal granted;

(2) Appeal dismissed.

These are my reasons for joining in with the orders made on that day.

Introduction

The applicant, Mr Phillip Apthorpe, pleaded guilty before Neilson DCJ to one offence of affray, contrary to s 93C(1) of the Crimes Act 1900.

In addition, he asked, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999, that two further charges, placed on a List of Additional Charges (Form 1), be taken into account. They were a charge of intentionally damaging property contrary to s 195(1)(a) of the Crimes Act and of larceny, contrary to s 117 of the Crimes Act.

The principal offence related to an incident which occurred on 7 May 2010, when the applicant together with four other men, being his brother Graham, Mr Ryan Sloane, Mr Scott Sunners and Mr Jayden Hunter, set upon Richard Drake and assaulted him.

Neilson DCJ also had these co-offenders, except Mr Hunter, before him for sentence on 21…

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 Apthorpe v R

Details

AGLC: Apthorpe v The Queen [2012] NSWCCA 100
Case: [2012] NSWCCA 100
Decision Date: 21 May 2012

CaseChat Overview and Summary

In the Supreme Court of South Australia, Apthorpe appealed against his sentence for his involvement in an affray. The case involved a dispute between the applicant and the Crown, focusing on the appropriateness of the sentence imposed following the conviction. The legal issues in the appeal centred on whether the sentence was manifestly excessive, if there were any errors in attributing statements made during the affray to the applicant, and if the sentencing judge had correctly considered the circumstances of the offence. The court had to determine if any errors were of substance and whether the sentence imposed was just.

The court found that the sentence was not manifestly excessive. It considered the culpability of all five offenders involved in the affray, which was similar, and noted that the error in attributing a statement during the affray to the applicant was not of substance. The court also determined that the error regarding the circumstances of the Form 1 offences was not significant enough to affect the overall outcome. Additionally, the court found that the four-month longer non-parole period given to a co-offender was not clearly unjustifiable.

In conclusion, the court dismissed the appeal. The sentence imposed was deemed appropriate, and the errors made during the sentencing process did not significantly impact the overall outcome. The appeal was unsuccessful, and the sentence was upheld.

Orders