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Buxton v R

Buxton v R

Case [2017] NSWCCA 169 17 July 2017

Sentencing

Appeal

Manifestly Excessive Sentence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Buxton v R [2017] NSWCCA 169
Hearing dates: 20 March 2017
Date of orders: 17 July 2017
Decision date: 17 July 2017
Before: Bathurst CJ and Walton J at [1]; Price J at [122].
Decision:
(1) Leave to appeal be granted.

(2) The appeal be allowed.

(3) The sentence imposed on the appellant on 3 December 2015 for the offence of armed robbery with an offensive weapon be quashed.
(4) The appellant is sentenced to a term of imprisonment of 6 years and 5 months commencing on 25 April 2014 consisting of a non-parole period of 4 years expiring on 24 April 2018 and a balance of term of 2 years and 5 months expiring on 24 September 2020.
Catchwords: CRIMINAL LAW – Sentencing – appeal against sentence – whether sentencing judge erred in his consideration of the applicant’s disadvantaged background – whether sentencing judge erred in his consideration of the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 – whether manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW) s 97(1)
Criminal Appeal Act 1912 (NSW) s 5(1)(c)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 22(1A), 33
Cases Cited: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Bland v The Queen (2014) 241 A Crim R 51; [2014] NSWCCA 82
Bloomfield v R [2013] NSWCCA 315
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cowan v R [2015] NSWCCA 118
Currie v R [2013] NSWCCA 267
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Gal v R [2015] NSWCCA 242
Gardner v R [2015] NSWCCA 170
Graham v R [2009] NSWCCA 212
Hamed v R [2011] NSWCCA 219
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Huynh v R [2008] NSWCCA 216
Johnston v R [2017] NSWCCA 53
Kennedy v R [2010] NSWCCA 260
Kentwell v R (No 2) [2015] NSWCCA 96
Lee v R [2016] NSWCCA 146
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mulato v R [2006] NSWCCA 282
Mun v R [2015] NSWCCA 234
Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55
Ngati v R [2014] NSWCCA 125
Opacic v R [2013] NSWCCA 294
Pham v R [2013] NSWCCA 217
PK v R [2012] NSWCCA 263
R v Baker [2000] NSWCCA 85
R v Cobb [2015] NSWDC 66
R v Engert (1995) 84 A Crim R 67
R v Fernando (1992) 76 A Crim R 58
R v Henry (1999) 46 NSWLR 346, [1999] NSWCCA 111
R v McNaughton (2006) 66 NSWLR…

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 Buxton v R

Details

AGLC: Buxton v R [2017] NSWCCA 169
Case: [2017] NSWCCA 169
Decision Date: 17 July 2017

CaseChat Overview and Summary

The appellant, Buxton, appealed against his sentence in the High Court of Australia. The nature of the dispute was whether the sentencing judge erred in his consideration of the applicant’s disadvantaged background and the guideline judgment in R v Henry. The appeal was against a sentence imposed by the NSW Court of Criminal Appeal which had upheld the sentence imposed by the sentencing judge.

The legal issues before the court were whether the sentencing judge erred in his consideration of the appellant’s disadvantaged background and whether the guideline judgment in R v Henry was correctly applied. The court considered whether the sentence was manifestly excessive and whether the sentencing judge had given sufficient weight to the appellant’s disadvantaged background. The court also considered whether the sentence was proportionate to the gravity of the offence.

The court held that the sentencing judge did not err in his consideration of the appellant’s disadvantaged background. The court found that the sentencing judge had given appropriate weight to the appellant’s disadvantaged background and had considered it in the context of the overall circumstances of the case. The court also held that the guideline judgment in R v Henry was correctly applied and that the sentence was proportionate to the gravity of the offence. The court found that the sentence was not manifestly excessive and that the appeal should be dismissed.

Orders