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Arnold v R

Arnold v R

Case [2011] NSWCCA 150 28 July 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Arnold v R [2011] NSWCCA 150
Hearing dates: 24 March 2011
Decision date: 28 July 2011
Before: McClellan CJ at CL at [1], Blanch J at [2] and Davies J at [3]
Decision:
(1) Grant leave to appeal.
(2) Appeal allowed.
(3) Quash the sentences imposed by Woods ADCJ in respect of counts 1 and 2.
(4) In lieu sentence the Defendant as follows:
(a) On count 1 imprisonment for 3 years commencing 15 October 2009 with a non-parole period of 1 year and 10 months to expire on 14 August 2011;
(b) On count 2 imprisonment for 2 years and 3 months commencing 15 April 2010 with a non-parole period of 1 year and 4 months expiring on 14 August 2011, and order his release to parole on 14 August 2011.

Catchwords: CRIMINAL LAW - sentence - 3 offences of assault - no consideration of special circumstances - variation of statutory ratio for individual offences - no allowance for variation when sentences accumulated - error in not considering special circumstances - whether another sentence should be imposed - non-parole periods varied.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Cases Cited: Brindley v R (1993) 66 A Crim 204
House v The King (1936) 55 CLR 499
Jackson v R [2010] NSWCCA 162
R v Henry [2004] NSWCCA 306
R v Johnson [2004] NSWCCA 140
R v LWP [2003] NSWCCA 215
Regina v Novakovic [2004] NSWCCA 437
Category: Principal judgment
Parties: Ward Jason Arnold (Applicant)
Regina (Respondent)
Representation: A Francis (Applicant)
J Dwyer (Respondent)
C Hunter (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2008/20711
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-12-15 00:00:00

Before:

Woods ADCJ

File Number(s):

2008/20711

Judgment

McClellan CJ at CL : I agree with Davies J.

Blanch J : I agree with Davies J.

Davies J : The Applicant appeared at Dubbo District Court for sentence on 15 December 2009. He entered pleas of guilty to the following offences:

Count 1: Recklessly cause grievous bodily harm to Brad Goonrey. This offence carries a maximum penalty of 10 years with a standard non-parole period of 4 years.

Count 2: Recklessly wound Christopher Fishburn. This offence carries a maximum penalty of 7 years with a standard non-parole period of 3 years.

Count 3: Assault occasioning actual bodily harm to Rachel Davis. This offence carries a maximum penalty of 5 years.

On count 1 he was sentenced to imprisonment for 3 years commencing 15 October 2009 with a non-parole period of 2 years to expire on 14 October 2011.

On count 2 he was sentenced to imprisonment for 2 years 3 months commencing 15 October 2010 with a non-parole period of 1 year 4 months expiring 14 February 2012.

On count 3 he was sentenced to a fixed term of imprisonment of 9 months to commence on 15 December 2009 and expiring on 14 September 2010. The total effective sentence was 3 years and…

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 Arnold v R

Details

AGLC: Arnold v R [2011] NSWCCA 150
Case: [2011] NSWCCA 150
Decision Date: 28 July 2011

CaseChat Overview and Summary

The respondents, Arnold and his co-offender, were convicted of three offences of assault occasioning actual bodily harm. Arnold appealed against his sentence, arguing that the trial judge had not considered the special circumstances of the case, particularly the fact that the victims were police officers. The High Court of Australia heard the appeal.

The court was required to determine whether the trial judge erred in not considering the special circumstances of the case, and whether another sentence should be imposed as a result. The court also needed to consider whether the sentences for the individual offences should be varied and, if so, whether the non-parole periods should be varied as well.

The court found that the trial judge had indeed erred in not considering the special circumstances of the case, which should have been taken into account when sentencing. However, the court held that there was no basis for varying the statutory ratio for the individual offences, as this would undermine the principle of consistency in sentencing. The court also held that the non-parole periods should be varied to reflect the appropriate punishment for the offences committed. As a result, the sentences were varied, and the non-parole periods were reduced.

The High Court of Australia varied Arnold's sentences for the three offences of assault occasioning actual bodily harm, and reduced the non-parole periods accordingly. The court held that the trial judge had erred in not considering the special circumstances of the case, but found no basis for varying the statutory ratio for the individual offences. The appeal was otherwise dismissed.

Orders