Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Butler v R [2023] NSWCCA 100 Hearing dates: 27 March 2023 Date of orders: 28 April 2023 Decision date: 28 April 2023 Before: Beech-Jones CJ at CL at [1];
N Adams J at [2];
Yehia J at [88].Decision: (1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentence imposed on the applicant by Judge Craigie SC on 14 June 2022 is quashed. In lieu thereof, the applicant is sentenced to a term of imprisonment of 2 years to commence on 14 June 2022 and expire on 13 June 2024. He is to be released pursuant to a recognisance release order on 13 May 2023 conditional upon him being of good behaviour and agreeing to forfeit the sum of $1,000 should he be in breach of that order.
Catchwords: CRIME – Appeal – Appeal against sentence – whether sentencing judge failed to assess prospects of rehabilitation and risk of reoffending – sentencing judge made no positive finding – ground upheld –whether applicant established justifiable sense of grievance in relation to his sentence compared with that of co-offender – where co-offender was instigator of offending but had stronger subjective case – ground upheld – applicant re-sentenced
Legislation Cited: Crimes (Administration of Sentences) Act1999 (NSW), s 6 (2)
Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
Crimes Act 1914 (Cth), ss 3LA(6), 16A(2)(n), 20
Trade Marks Act 1995 (Cth), s 148(1)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Huckstadt v R [2016] NSWCCA 22
Kentwell v The Queen (2014) 252 CLR]; [2014] HCA 37
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
R v Agius; R v Zerafa (2012) 87 ATR 528; [2012] NSWSC 978
R v Boughen; R v Cameron [2012] NSWCCA 17
R v Dowel; Ex parte Attorney-General (Qld) [2013] QCA 8
R v Groombridge, unreported, 30 September 1990 NSW Court of Criminal Appeal
Category: Principal judgment Parties: Damien Steven Butler (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
Mr T Ramrakha (Applicant)
Mr L Fernandez (Respondent)
Legal Aid Commission of NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2020/221490 Publication restriction: Nil. Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Date of Decision:
- 14 June 2022
- Before:
- Craigie SC DCJ
- File Number(s):
- 2020/00221490
HEADNOTE
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- AGLC
- Butler v R [2023] NSWCCA 100
- Case
- [2023] NSWCCA 100
- Decision Date
CaseChat Overview and Summary
The court found that the sentencing judge did not adequately assess Butler's prospects of rehabilitation and the risk of reoffending, which was a significant oversight. The court also determined that Butler had established a justifiable sense of grievance regarding his sentence compared to his co-offender. The co-offender, who was the instigator, had a stronger subjective case for a lesser sentence. The court held that both grounds of appeal were valid. Consequently, the applicant was re-sentenced.
In light of the above findings, the court set aside Butler's original sentence and re-sentenced him, taking into account the proper assessment of rehabilitation and reoffending risk, as well as the comparative sentence of the co-offender. The re-sentencing was intended to address the errors identified in the initial sentencing process. The appeal was ultimately successful, and the new sentence reflected a more balanced approach to the sentencing considerations.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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