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Butler v R

Butler v R

Case [2023] NSWCCA 100 28 April 2023

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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
Fenech v R [2018] NSWCCA 160
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
Lloyd v R [2017] NSWCCA 303
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pogson v R [2012] NSWCCA 225
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
R v SBR [2012] NSWCCA 233
Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
Tuivaga v R [2015] NSWCCA 145
Usher v R [2016] NSWCCA 276
Vartzokas v Zanker (1989) 51 SASR 277

Category: Principal judgment
Parties: Damien Steven Butler (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr T Ramrakha (Applicant)
Mr L Fernandez (Respondent)
Solicitors:
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

[This headnote is not to be…

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 Butler v R

Details

AGLC: Butler v R [2023] NSWCCA 100
Case: [2023] NSWCCA 100
Decision Date: 28 April 2023

CaseChat Overview and Summary

Butler appeals against his sentence on the grounds that the sentencing judge failed to assess his prospects of rehabilitation and the risk of reoffending. The appeal was heard by the Court of Criminal Appeal. Butler argues that the sentencing judge did not make a positive finding on these matters, which is a critical part of the sentencing process. The court was required to determine whether the appeal grounds were valid and, if so, whether the applicant's sentence should be altered.

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