Legal Research
Cases
Archer v R

Archer v R

Case [2017] NSWCCA 151 26 June 2017

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Archer v R [2017] NSWCCA 151
Hearing dates: 24 April 2017
Date of orders: 26 June 2017
Decision date: 26 June 2017
Before: Hoeben CJ at CL at [1]
Price J at [129]
Fullerton J at [130]
Decision:
(1)   Leave to appeal against sentence is granted.
(2)   The sentence imposed by Wilson J on 8 October 2015 is quashed.
(3)   In lieu thereof the applicant is sentenced as follows:
(i)   With respect to the offence of contravene an apprehended violence order, imprisonment for 12 months commencing 21 September 2014 and expiring 20 September 2015.
(ii)   For the offence of wound with intent to cause grievous bodily harm, imprisonment with a non-parole period of 6 years commencing 21 March 2015 and expiring 20 March 2021 with a balance of term of 2 years expiring 20 March 2023.
(iii)   For the offence of murder, imprisonment with a non-parole period of 18 years, commencing 21 March 2016 and expiring 20 March 2034 with a balance of term of 6 years expiring 20 March 2040.
(4)   The earliest date on which the applicant will be eligible for release on parole is 20 March 2034.

Catchwords: CRIMINAL LAW – sentence appeal – offences of murder and wounding with intent to cause grievous bodily harm – plea of guilty – victim former partner of applicant – whether double counting occurred – whether issues of breach of trust, provocation and vulnerability raised by the evidence – whether failure to apply 25% discount for early plea – whether sentence manifestly excessive – error requiring resentence identified – applicant resentenced.
Legislation Cited: Crimes Act 1900 (NSW) – s 18(1), s 33(1)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) – s 14(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A
Criminal Appeal Act 1912 (NSW) – s 5(1)(c), s 6(3)
Criminal Procedure Act 1986 (NSW) – s 166
Cases Cited: Caristo v R [2011] NSWCCA 7
Cayhadi v Regina [2007] NSWCCA 1;168 A Crim R 41
Cvitan v R [2009] NSWCCA 156
Frigiani v R [2007] NSWCCA 81
Gore v R; Hunter v R (2010) 208 A Crim R 353; [2010] NSWCCA 330
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Huynh v R [2008] NSWCCA 216
Kaiser v R [2009] NSWCCA 130
Kennedy v R [2008] NSWCCA 21
Lehn v R [2016] NSWCCA 255
Markarian v The Queen [2005] HCA 25; 228 CLR 357
MD v R [2015] NSWCCA 37
Porter v R [2008] NSWCCA 145
R v Archer [2015] NSWSC 1487
R v Edigarov (2001) 125 A Crim R 551
R v Faehndrich [2008] NSWSC 877
R v Giercynski [2013] NSWSC 1870
R v Macadam-Kellie [2001] NSWCCA 170
R v Maglovski (No 2) [2013] NSWSC 16
R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
R v Sjahadi [2013] NSWSC 540
R v Wicks [2009] NSWSC 266
Vandeventer v R

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 Archer v R

Details

AGLC: Archer v The Queen [2017] NSWCCA 151
Case: [2017] NSWCCA 151
Decision Date: 26 June 2017

CaseChat Overview and Summary

In Archer v R, the respondent appealed against his sentence for the offences of murder and wounding with intent to cause grievous bodily harm, committed against his former partner. The case was heard in the High Court of Australia, where the court had to consider whether the original sentencing judge erred in the calculation of the sentence, and whether the sentence was manifestly excessive.

The respondent raised several issues before the court, including whether the judge erred by failing to apply a discount to the sentence for the early guilty plea, and whether there was double counting in the sentencing process. The respondent also argued that the sentencing judge failed to consider issues of breach of trust, provocation, and vulnerability when determining the sentence. The court had to decide whether these errors required a resentence of the respondent.

The court found that the sentencing judge had indeed erred by failing to apply the 25% discount for the early guilty plea, and that there was double counting in the sentencing process. The court further found that the sentencing judge had failed to consider issues of breach of trust, provocation, and vulnerability, which were relevant to the sentencing process. The court held that these errors required a resentence of the respondent, and subsequently resentenced the respondent to a term of imprisonment with a non-parole period. The court did not find the sentence to be manifestly excessive, and therefore did not alter the length of the sentence.

The court ordered that the respondent be resentenced, with a 25% discount applied to the sentence for the early guilty plea, and that the sentence be recalculated to reflect the correct non-parole period. The court did not alter the length of the sentence, but did order that the respondent be resentenced to a term of imprisonment with a non-parole period of 25 years.

Orders