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Buckley v R

Buckley v R

Case [2021] NSWCCA 6 3 February 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Buckley v R [2021] NSWCCA 6
Hearing dates: 12 October 2020
Date of orders: 03 February 2021
Decision date: 03 February 2021
Before: McCallum JA at [1];
Garling J at [2];
Wright J at [3]
Decision:
(1) The applicant is granted leave to appeal.
(2) The appeal is allowed.
(3) The aggregate sentence imposed by the District Court at Newcastle on 16 April 2019 is quashed.
(4) The applicant is sentenced to an aggregate sentence comprising a non-parole period of 4 years commencing on 30 April 2018 and expiring on 29 April 2022 with a balance of the term of 3 years 6 months expiring on 29 October 2025.

Catchwords:
CRIMINAL LAW – Sentence – Appeal against sentence – Series of armed robbery offences –Whether sentencing judge erred in not considering the causal effect of the applicant’s schizophrenia on his mental state despite unchallenged medical evidence – Whether sentencing judge erred in applying a rigid mathematical rule that a combined discount for the guilty plea and assistance could not exceed 40% absent exceptional circumstances – Appeal against sentences allowed and sentences quashed – Applicant resentenced

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
Aslan v R [2014] NSWCCA 114
CMB v Attorney-General for NSW (2015) 256 CLR 346; [2015] HCA 9
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Panetta v R [2016] NSWCCA 85
R v Ellis (1986) 6 NSWLR 603
R v Henry [1999] NSWCCA 111; 106 A Crim R 149
SZ v R [2007] NSWCCA 19; 168 A Crim R 249
Z v R [2014] NSWCCA 323

Category: Principal judgment
Parties: John Patrick Buckley (Applicant)
Regina (Crown)
Representation:
Counsel:
A Evers (Applicant)
M Kumar (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/190985; 2018/196514; 2018/162549; 2018/162566; 2018/135741; 2018/135780
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 April 2019

Before:

Sutherland SC DCJ

File Number(s):

2018/190985; 2018/196514; 2018/162549; 2018/162566; 2018/135741; 2018/135780

Judgment

McCALLUM JA: I agree with Wright J. The only observation I wish to add is that, as I sought to emphasise in Z v R in the paragraph following the paragraph Wright J has cited, the proposition that a combined discount will not generally exceed 50% should not be understood as a rigid mathematical rule but merely an expression of the requirement that the sentence reached after allowing any discount must not be unreasonably disproportionate to the nature and circumstances of the offence.
GARLING J: I agree with Wright J.
WRIGHT J: The applicant, Mr John Buckley, seeks leave to appeal under s 5(1)(c) 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 Buckley v R

Details

AGLC: Buckley v R [2021] NSWCCA 6
Case: [2021] NSWCCA 6
Decision Date: 03 February 2021

CaseChat Overview and Summary

In Buckley v R, the respondent, an individual with a history of mental health issues, appealed against his sentences for a series of armed robberies. The appellant, the Crown, sought to uphold the sentences imposed by the sentencing judge. The dispute primarily revolved around whether the sentencing judge failed to adequately consider the causal effect of the respondent's schizophrenia on his mental state, despite medical evidence supporting this connection. Additionally, the appeal challenged the sentencing judge's application of a rigid mathematical rule, which stated that a combined discount for the guilty plea and assistance could not exceed 40% unless exceptional circumstances were present.

The court was required to determine if the sentencing judge erred by not sufficiently accounting for the respondent's schizophrenia when assessing his culpability and mental state during the offences. Furthermore, the court needed to evaluate whether the sentencing judge was correct in adhering to a strict mathematical discount rule without considering the respondent's unique circumstances. The appeal hinged on the interpretation of the law relating to sentencing discounts and the consideration of mental health in sentencing.

The court found that the sentencing judge did not appropriately consider the causal effect of the respondent's schizophrenia, which was supported by unchallenged medical evidence. This omission was significant as it could have affected the respondent's culpability and mental state during the commission of the offences. Additionally, the court ruled that the sentencing judge's adherence to a strict mathematical discount rule was inappropriate in this case, given the respondent's exceptional circumstances. Consequently, the appeal was allowed, the sentences were quashed, and the respondent was to be resentenced by the original sentencing judge or another judge of the court.

Orders