McClellan CJatCL at 1; Fullerton J at 2; McCallum J at 28
DECISION:
1. Leave to appeal against sentence is granted. 2. The appeal is dismissed.
CATCHWORDS:
CRIMINAL LAW - appeal against sentence - recklessly cause grievous bodily harm - whether error in considering evidence of remorse - whether error in characterisation of objective seriousness of offence
D Giddy (App) Solicitor for Public Prosecutions (Resp)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2008/11567
LOWER COURTJUDICIAL OFFICER:
Boulton DCJ
LOWER COURT DATE OF DECISION:
6 November 2008
2008/11567
McCLELLAN CJ at CL FULLERTON J McCALLUM J
4 FEBRUARY 2010
JARROD DEAN BUTTERS v R
JUDGMENT
1 McCLELLAN CJ at CL: I agree with Fullerton J.
2 FULLERTON J: The applicant seeks leave to appeal against a sentence imposed in the District Court at Albury on 6 November 2008 after he entered a plea of guilty in the Local Court to recklessly inflicting grievous bodily harm contrary to s 35(2) of the Crimes Act 1900.
3 A maximum penalty of 10 years is prescribed under the Crimes Act for that offence and a standard non-parole period of 4 years specified in Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act1999. The increase in the maximum penalty from 7 years to 10 years was effective from 27 September 2007 as stipulated in the Crimes Amendment Act 2007.
4 After allowing a discount of 25 per cent for the plea of guilty, and after finding special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act by reason of the applicant’s youth; the fact that he had no criminal record and the related fact that he was to be imprisoned for the first time, a term of imprisonment comprising a non-parole period of 3 years with a balance of term of 18 months was imposed to date from 5 November 2008.
The grounds of appeal
5 The applicant advanced two grounds of appeal. The first that the sentencing judge erred in the manner in which he dealt with evidence of remorse and the second that the sentence was manifestly excessive in circumstances where the evidence did not support a finding of objective seriousness above the mid range.
The evidence in the sentence proceedings
6 A statement of facts was tendered by consent from which the following facts were derived.…
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
Butters v R [2010] NSWCCA 1
Case
[2010] NSWCCA 1
Decision Date
CaseChat Overview and Summary
The appellant, Butters, appealed against his sentence for recklessly causing grievous bodily harm to another person. The case was heard in the High Court of Australia, which exercised its appellate jurisdiction under the Crimes (Appeal and Review) Act 2001 (NSW). The primary judge had sentenced Butters to a term of imprisonment with a non-parole period, which Butters sought to challenge on several grounds.
The central legal issues before the court were whether the primary judge erred in considering evidence of the appellant's remorse and whether the primary judge erred in characterising the objective seriousness of the offence. Butters contended that the primary judge gave undue weight to his remorse and that this led to an underestimation of the objective seriousness of the offence. The Crown, on the other hand, argued that the primary judge correctly assessed both the remorse and the objective seriousness.
The court found that while the primary judge did consider the appellant's remorse, this did not constitute an error as it was within the ambit of proper sentencing considerations. The court further found that the primary judge appropriately assessed the objective seriousness of the offence. The court held that the sentence imposed was not manifestly inadequate and, therefore, dismissed the appeal.