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Brown v R

Brown v R

Case [2014] NSWCCA 215 13 October 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Brown v R [2014] NSWCCA 215
Hearing dates: 02/09/2014
Decision date: 13 October 2014
Jurisdiction: Criminal
Before: Beazley P at [1]
R A Hulme J at [2]
Garling J at [3]
Decision:
(1) Application for leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal - sentence - one offence - recklessly causing grievous bodily harm contrary to Crimes Act 1900, s 35(2) - guilty plea - head sentence of 4 years and 10 months - non-parole period of 3 years and 4 months - CRIMINAL LAW - appeal - sentence -whether trial Judge erred in the way he used the appellant's prior criminal record - antecedent criminal history - factor which may be taken into account in determining sentence to be imposed - Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 - CRIMINAL LAW - appeal - sentence - whether trial Judge erred in characterising the level of objective seriousness as being within the mid-range for offences of this type - objective serious not ordinarily susceptible of interference on appeal - no discrete error - objective circumstances taken into account - characterisation of facts challenged - CRIMINAL LAW - appeal - sentence - whether sentence manifestly excessive - whether the sentence was unreasonable or plainly unjust
Legislation Cited: Crimes Act 1900
Cases Cited: Aslett v Regina [2006] NSWCCA 360
Barbaro v The Queen, Zirillli v The Queen [2014] HCA 2; (2014) 305 ALR 323
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hili v The Queen, Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
Mulato v Regina [2006] NSWCCA 282
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
Veen v The Queen (No.2) [1988] HCA 14; (1987 - 1988) 164 CLR 465
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Category: Principal judgment
Parties: Paul Wayne Brown (Applicant)
The Queen
Representation: Counsel:
A Miller (Applicant)
S Dowling SC (Crown)
Solicitors:
William Whitby Lawyers (Applicant)
Director of Public Prosecutors (Crown)

File Number(s): 2012/368228
Decision under appeal

Date of Decision:

2013-10-18 00:00:00

Before:

Frearson DCJ

Judgment

BEAZLEY P: I agree with Garling J.

R A HULME 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 by his Honour Frearson DCJ, on 18 October 2013.

The applicant had pleaded guilty on 29 July 2013, to one offence contrary to s 35(2) of the Crimes Act 1900, of recklessly causing grievous bodily harm to Monique Latini.

The maximum penalty for the offence was 10 years imprisonment. A standard non-parole period of 4 years was prescribed.

On 18 October 2013, the sentencing Judge imposed a term of imprisonment of 3 years and 4 months by way of a non-parole period, with a balance of term of…

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 Brown v R

Details

AGLC: Brown v R [2014] NSWCCA 215
Case: [2014] NSWCCA 215
Decision Date: 13 October 2014

CaseChat Overview and Summary

The case of Brown v R concerned an appeal against the sentence imposed on the appellant, Brown, who was convicted of recklessly causing grievous bodily harm under section 35(2) of the Crimes Act 1900. Brown had pleaded guilty to the offence and was sentenced by the trial judge to a head sentence of 4 years and 10 months imprisonment, with a non-parole period of 3 years and 4 months. The appeal focused on three main issues: whether the trial judge erred in the way he used the appellant’s prior criminal record, whether the trial judge correctly characterised the level of objective seriousness of the offence, and whether the sentence was manifestly excessive.

The court examined whether the trial judge had appropriately considered the appellant’s criminal history when determining the sentence. The court noted that a defendant's prior criminal record is a factor that may be taken into account in sentencing, but must be balanced against other relevant considerations. The court found that the trial judge had considered the appellant's criminal history appropriately, noting that it was a factor but not the sole determinant of the sentence.

Furthermore, the court assessed whether the trial judge had correctly characterised the level of objective seriousness of the offence. The court held that the objective seriousness of an offence is not ordinarily subject to interference on appeal, unless there is a clear error in the trial judge’s assessment. The court found that the trial judge had correctly considered the objective circumstances of the offence and that the characterisation of the facts by the trial judge did not constitute a discrete error.

Finally, the court considered whether the sentence was manifestly excessive or unreasonable. The court found that the sentence imposed was within the range typically seen for offences of this type and was not plainly unjust. The court concluded that the sentence reflected the gravity of the offence and the appellant's criminal history appropriately.

The appeal was dismissed, and the original sentence was upheld.

Orders