Meagher JA at [1]; Johnson J at [1]; Rothman J at [10]
Decision:
Leave to appeal refused.
Catchwords:
CRIMINAL LAW – Appeal – disparity alleged between adult offender and juvenile – substantial difference in subjective circumstances – no arguable case; APPEALS – Criminal law – disparity not squarely put below – no arguable case – leave refused.
Counsel: M Smith (Applicant) S Dowling SC (Respondent)
Solicitors: SCT Lawyers (Applicant) Director of Public Prosecutions (NSW) (Respondent)
File Number(s):
2012/230431
Decision under appeal
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
17 July 2015
Before:
Colefax SC DCJ
File Number(s):
2012/230431
Judgment
MEAGHER JA and JOHNSON J: We have had the advantage of reading in draft the judgment of Rothman J. We agree with his Honour that the applicant should be refused leave to appeal against sentence. We prefer to express our own short reasons for that conclusion.
The factual background to the present application appears in the judgment of Rothman J.
The sole ground of appeal seeks to invoke the parity/proportionality principle by reference to a co-offender sentenced in the Children’s Court. The so-called second ground of appeal was merely a submission as to the approach which the Court should take if error…
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.
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AGLC
Belvie v The Queen [2017] NSWCCA 36
Case
[2017] NSWCCA 36
Decision Date
CaseChat Overview and Summary
The appeal heard by the court involved Belvie against The Queen, where the central dispute was the disparity in sentencing between an adult offender and a juvenile. The case originated in a lower court, where Belvie had challenged the disparity in his sentencing compared to that of a co-accused who was a juvenile at the time of the offence. The High Court of Australia was tasked with examining whether the disparity in sentencing constituted a substantial difference in subjective circumstances sufficient to warrant a departure from the established legal principles.
The legal issues before the court included whether the disparity in sentencing between an adult and a juvenile could be considered a substantial difference in subjective circumstances, and if so, whether this constituted an arguable case warranting judicial review. Additionally, the court had to determine if the argument regarding the disparity was adequately presented in the lower court to warrant consideration on appeal. The court focused on the procedural aspects of how the issue was raised and whether it was sufficiently argued to meet the threshold for an arguable case.
In its reasoning, the court found that the argument regarding the disparity in sentencing between the adult and the juvenile was not adequately presented in the lower court to constitute an arguable case. The court noted that the specific argument regarding the substantial difference in subjective circumstances was not squarely put before the lower court. Consequently, the court held that the appeal did not present an arguable case, and therefore, leave to appeal was refused. The court emphasised the importance of adequately presenting arguments in the initial proceedings to ensure that all relevant issues are considered in the appellate process.