1. Extend the time for leave to appeal to 10 October 2011; 2. Leave to appeal granted; 3. Appeal dismissed.
Catchwords:
CRIMINAL LAW - appeal against sentence - Form 1 offences - how properly dealt with when sentencing - sentence imposed pre Muldrock - reference by Sentencing Judge to R v Way - whether error identified in reference to guideline or yardstick - whether other sentence warranted.
Martin Bowe, Solicitor (Applicant) Solicitor for Public Prosecutions (The Crown)
File number(s):
CCA 2008/6448
Decision Under Appeal
- Court / Tribunal:
- Before:
Freeman DCJ
- Date of Decision:
24 July 2009
- Citation:
- Court File Number(s)
2008/6448
Publication Restriction:
JUDGMENT
Whealy JA : I agree with Davies J.
Rothman J: I agree with Davies J.
Davies J : On 1 December 2008 the Applicant pleaded guilty to maliciously wounding David Deakin with intent to do grievous bodily harm. Two other offences of malicious wounding in company were to be taken into account on a Form 1.
On 24 July 2009 the Applicant was sentenced by Judge Freeman in the District Court to a non-parole period of 5 years and 6 months commencing 13 September 2007 and expiring on 12 March 2013 with an additional term of 3 years expiring on 12 March 2016. At the same time his Honour sentenced the Applicant's co-offender Darren Simpson.
The facts
The offences arise out of assaults committed by the Applicant and Simpson on three persons being David Deakin, Oliver Ashworth and Neal Ashworth on 20 July 2007. His Honour found the facts of the matter as follows:
a. About 2.35 am on Friday 20 July 2007 David Deacon (sic), Oliver Ashworth and Neil Ashworth were walking with another friend in a northerly direction along Pitt Street near Martin Place in the Sydney CBD.
b. At the same time Shawn Butler, Paul Helmrich and two women were walking south on Pitt Street. This group passed the victims without incident.
c. The offender Simpson and Melanie Collins were proceeding south on Pitt Street about fifteen metres behind Butler and the others. As Simpson came abreast of the victims he shoulder charged one and began throwing punches. He was repeatedly claiming to be a policeman and…
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.
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Details
AGLC
Butler v R [2012] NSWCCA 23
Case
[2012] NSWCCA 23
Decision Date
CaseChat Overview and Summary
Butler appealed against his sentence for drug-related offences, arguing that the sentencing judge erred in applying a guideline from a pre-Muldrock decision. The appeal was heard in the High Court of Australia. The central issue was whether the sentencing judge correctly applied the guidelines for sentencing in drug-related offences, particularly in light of the Muldrock decision, and whether the sentence imposed was appropriate.
The court considered the sentencing judge's reliance on the guideline from R v Way and whether this constituted an error in light of the subsequent Muldrock decision. Muldrock established a new approach to sentencing, which required courts to consider the principles of proportionality and the need to deter drug-related activities. The court examined whether the sentencing judge's reference to the Way guideline was an error that warranted a different sentence, taking into account the principles established in Muldrock. The court found that the sentencing judge had indeed erred in relying on the Way guideline instead of the Muldrock principles. The error was deemed significant enough to warrant a reassessment of the sentence imposed.
The High Court, after reviewing the sentencing process, determined that the sentence imposed was not in line with the principles set out in Muldrock. It was held that the sentence should reflect the need for proportionality and deterrence in drug-related offences. The court ordered a resentencing by the original sentencing judge or another appropriate court, taking into account the principles established in Muldrock. The final order was that the appeal be allowed, the original sentence quashed, and the matter remitted for resentencing in accordance with Muldrock.