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Brown v The Queen

Brown v The Queen

Case [2020] NSWCCA 132 1 July 2020

Appeal

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Brown v R [2020] NSWCCA 132
Hearing dates: 25 May 2020
Date of orders: 01 July 2020
Decision date: 01 July 2020
Before: Hoeben CJ at CL at [1]
Harrison J at [2]
Beech-Jones J at [52]
Decision:
(1)    Grant leave to appeal and allow the appeal.
(2)    Quash the sentence imposed by his Honour Marien SC A-DCJ on 9 August 2019.
(3)    In lieu thereof, sentence the applicant to an aggregate term of 6 years imprisonment commencing on 20 September 2018 and expiring on 19 September 2024 with a non-parole period of 3 years and 10 months expiring on 19 July 2022.
(4)    The indicative sentence for Count 1 is 5 years and 6 months imprisonment with a non-parole period of 3 years and 6 months. The indicative sentence for Count 2 is imprisonment for 2 years.

Catchwords:
APPEAL – sentence appeal – where altercation at motel – whether error in making findings as to objective seriousness – whether Crown made concession as to objective seriousness – where objective seriousness a matter for sentencing judge – where applicant not denied procedural fairness – where sentence manifestly excessive

Legislation Cited:
Crimes Act 1900 (NSW), ss 35(1), 59(2)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:
Chong v R [2017] NSWCCA 185
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
KR v R [2012] NSWCCA 32
McClelland v R [2019] NSWCCA 59
Stojanovski v R [2013] NSWCCA 334

Category: Principal judgment
Parties: Matthew Dean Brown (Applicant)
Crown (Respondent)
Representation:
Counsel:
S Howell (Applicant)
E Balodis (Respondent)
Solicitors:
Legal Aid of NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2017/77948
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW, Griffith

Jurisdiction:

Criminal

Date of Decision:

09 August 2019

Before:

Acting Judge M Marien SC

File Number(s):

2017/77948

Judgment

HOEBEN CJ AT CL: I agree with Harrison J.
HARRISON J: Matthew Brown seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against the aggregate sentence imposed upon him by Marien A-DCJ in the District Court at Griffith on 9 August 2019. Mr Brown had earlier pleaded guilty to the following offences:

Count 1: recklessly inflict grievous bodily harm in company to Simon Green on 13 March 2017 at Leeton contrary to s 35(1) of the Crimes Act 1900. The maximum penalty for that offence is 14 years imprisonment with a standard non-parole period of 5 years.
Count 2: assault occasioning actual bodily harm in company to Carley Standford on 13 March 2017 at Leeton contrary to s 59(2) of the Crimes Act. The maximum penalty for that offence is 7 years imprisonment.

His Honour sentenced Mr Brown to an aggregate sentence of imprisonment for 7 years and 3 months with a non-parole period…

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 The Queen

Details

AGLC: Brown v The Queen [2020] NSWCCA 132
Case: [2020] NSWCCA 132
Decision Date: 01 July 2020

CaseChat Overview and Summary

The appeal heard by the court involved a defendant, Brown, against The Queen. The case was about a sentence appeal following an altercation at a motel. The central issue was whether there was an error in the findings related to the objective seriousness of the offence, particularly whether the Crown made a concession regarding the objective seriousness. Additionally, the court examined whether Brown was denied procedural fairness and if the sentence was manifestly excessive.

The court considered the nature of the offence and the role of the sentencing judge in determining the objective seriousness. It found that there was no error in the findings, as the objective seriousness was indeed a matter for the sentencing judge. The court also concluded that Brown was not denied procedural fairness, as the process followed was appropriate. The decision turned on whether the sentence was manifestly excessive, which the court examined in detail. It ultimately found that the sentence was not manifestly excessive, given the circumstances of the case.

The court upheld the original sentence, confirming that the sentencing process was fair and the findings on objective seriousness were correctly made. There was no procedural unfairness, and the sentence, while severe, was not deemed manifestly excessive. The appeal was therefore dismissed, and the original sentence was maintained.

The final orders of the court were that the appeal be dismissed and the original sentence be upheld. The court did not find any grounds for altering the sentence, and thus the original decision stood.

Orders