Brown v The Queen - [2013] NSWCCA 309

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Brown v R [2013] NSWCCA 309
Hearing dates: 25 October 2013
Decision date: 09 December 2013
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Latham J at [3]
Decision:
Application for extension of time within which to seek leave to appeal sentence refused.

Catchwords: CRIMINAL LAW - application for extension of time to seek leave to appeal sentence - plea of guilty - robbery in company with infliction of grievous bodily harm - application for legal aid previously refused - legal aid provisionally granted on basis of Muldrock ground - whether refusal of application would result in substantial injustice to applicant - whether trial judge adopted two-stage approach to sentencing and gave determinative weight to standard non-parole period - whether trial judge erred in assessment of objective gravity - no Muldrock error - no House v The King error - no error in characterisation of level of injuries - application refused
Legislation Cited: Crimes Act 1900
Cases Cited: Abdul v R [2013] NSWCCA 247
Bou-Antoun v R [2013] NSWCCA 305
House v The King [1936] HCA 40; 55 CLR 499
Muldrock v The Queen [2011] HCA 39 ; 144 CLR 120
Category: Principal judgment
Parties: James Brown - (Applicant)
Regina - (Crown Respondent)
Representation: Counsel:
M King - (Applicant)
N Noman SC - (Crown Respondent)
Solicitors:
Legal Aid NSW - (Applicant)
Solicitor for Public Prosecutions - (Crown Respondent)

File Number(s): 2009/00193144
Decision under appeal

Date of Decision:

2010-03-04 00:00:00

Before:

Berman DCJ

File Number(s):

2009/00193144

Judgment

HOEBEN CJ at CL : I agree with Latham J.

JOHNSON J : I agree with Latham J.

LATHAM J : The applicant, James Leon Brown, seeks an extension of time within which to seek leave to appeal against a sentence imposed upon him after a plea of guilty to robbery in company with the infliction of grievous bodily harm, contrary to s 98 of the Crimes Act 1900. The offence carries a maximum penalty of 25 years' imprisonment with a standard non-parole period of 7 years.

Judge Berman SC imposed a non-parole period of 4 years and 6 months with a balance of term of 2 years and 6 months on 4 March 2010. The applicant filed a notice of intention to appeal on 18 March 2010 and an application for legal aid on 28 July 2010. On 7 December 2010 the application was refused on the basis that the Legal Aid Commission considered the appeal did not have reasonable prospects of success.

The applicant's file was reactivated by Legal Aid pursuant to the review of cases initiated by the decision of the High Court in Muldrock v The Queen [2011] HCA 39 ; 144 CLR 120.

This is yet another application which asserts the adoption of a two-stage approach to sentencing and the attribution of determinative significance to the standard non-parole period, contrary to Muldrock, in addition to a ground alleging error in the…

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 [2013] NSWCCA 309
Case: [2013] NSWCCA 309
Decision Date: 09 December 2013

CaseChat Overview and Summary

The applicant in this case, Brown, sought an extension of time to apply for leave to appeal his sentence following a guilty plea to charges of robbery in company with infliction of grievous bodily harm. The matter was heard in the High Court of Australia. The primary issue before the court was whether the refusal of Brown's application for an extension of time would result in substantial injustice to him. Additionally, the court considered whether the trial judge had adopted a two-stage approach to sentencing and given determinative weight to the standard non-parole period. Another consideration was whether the trial judge erred in the assessment of the objective gravity of the offence.

The court examined the trial judge's sentencing remarks and found no evidence of a two-stage approach being adopted, nor was there any determinative weight given to the standard non-parole period. The court also held that there was no error in the trial judge's assessment of the objective gravity of the offence. The court rejected the argument that the refusal of Brown's application for an extension of time would result in substantial injustice, as the applicant had not demonstrated that there was a reasonable prospect that the appeal would succeed. The court further found that there was no error in the characterisation of the level of injuries sustained by the victim.

In light of the above, the court dismissed Brown's application for an extension of time to seek leave to appeal his sentence. The court held that there was no Muldrock error or House v The King error, and no error in the characterisation of the level of injuries. The application was accordingly refused.

Orders