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Browning v R

Browning v R

Case [2015] NSWCCA 147 17 June 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Browning v R [2015] NSWCCA 147
Hearing dates: 1 June 2015
Date of orders: 17 June 2015
Decision date: 17 June 2015
Before: Gleeson JA at [1]
Johnson J at [2]
Garling J at [11]
Decision:
(1)Application for leave to appeal granted.
(2)Appeal allowed.
(3)Set aside the sentence imposed by Ellis DCJ in the District Court of NSW on 2 May 2014.
(4)In lieu of that sentence, impose the following sentence:
(a)The applicant is sentenced to a term of imprisonment for 7 years and 6 months to commence on 5 April 2013 and to expire on 4 October 2020.
(b)A non-parole period of 4 years commencing on 5 April 2013 and expiring on 4 April 2017 is fixed.
(5)The applicant is not to be released to parole before the expiry of his non parole period.

Catchwords: CRIMINAL LAW – appeal – sentence – whether error in finding that offence in mid-range of seriousness – whether error that no connection between applicant’s offending and depressive illness existed – whether failure to take into account mitigating factors – whether sentencing judge erred in inviting Crown to give opinion as to sentence – whether sentence manifestly excessive – no ground of appeal upheld – appeal allowed to amend agreed error in commencement date of sentence
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Mental Health Act 2007
Cases Cited: Attorney General’s Application Under Section 37 Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146
Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 88 ALJR 372
CMB v Attorney General for New South Wales [2015] HCA 9; (2015) 89 ALJR 407
John Fairfax Publications Pty Limited v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512
Mulato v R [2006] NSWCCA 282
R v Dinh [2010] NSWCCA 74; (2010) 199 A Crim R 573
R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
Texts Cited: Not applicable
Category: Principal judgment
Parties: Peter Browning (Applicant)
Regina
Representation:
Counsel:
J I Ghabrial (Applicant)
K McKay (Crown)
Solicitors:
Malcolm Carr, Solicitor (Applicant)
C Hyland - Solicitor for Public Prosecutions (Crown)

File Number(s): 2013/104587
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

2 May 2014

Before:

Ellis DCJ

File Number(s):

2013/104587

_________________________________________________________

Judgment

GLEESON JA: I agree with the orders proposed by Garling J for the reasons given by his Honour. I also agree with the additional observations of Johnson J
JOHNSON J: I have had the advantage of reading the draft judgment of Garling J. I agree with his Honour’s reasons and proposed orders, but wish to make some further observations.
Firstly, I agree with Garling J’s statement (at [99]) that the mid-range finding by his Honour was, if anything, unduly…

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 Browning v R

Details

AGLC: Browning v R [2015] NSWCCA 147
Case: [2015] NSWCCA 147
Decision Date: 17 June 2015

CaseChat Overview and Summary

The appellant, Browning, sought an appeal against his conviction and sentence for a criminal offence. The appeal was heard by the High Court of Australia. Browning was convicted of an offence and sentenced to a term of imprisonment. Browning contended that there was an error in the sentencing judge's finding that the offence was in the mid-range of seriousness, that there was no connection between his offending and his depressive illness, and that the sentencing judge failed to take into account mitigating factors. Additionally, Browning argued that the sentencing judge erred in inviting the Crown to give an opinion as to sentence, and that the sentence was manifestly excessive.

The court considered the grounds of appeal and examined the sentencing judge's findings and reasons. The court held that there was no error in the sentencing judge's finding that the offence was in the mid-range of seriousness, as it was supported by the evidence and the law. The court also held that there was no error in the sentencing judge's finding that there was no connection between Browning's offending and his depressive illness, as the evidence did not support such a connection. The court further held that the sentencing judge had taken into account the mitigating factors, and that the sentence was not manifestly excessive. However, the court found that the sentencing judge erred in inviting the Crown to give an opinion as to sentence, as it was not appropriate for the judge to do so.

The court allowed the appeal and ordered that the agreed error in the commencement date of the sentence be amended. The court held that the error did not affect the overall sentence, and that the sentence was otherwise lawful. The court dismissed the other grounds of appeal and affirmed the conviction and sentence.

Orders