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Cabezuela v R

Cabezuela v R

Case [2020] NSWCCA 107 25 May 2020

Appeal

Jurisdiction

Sentencing

Admissibility of Evidence

Criminal Law

No judgment structure available for this case.

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Cabezuela v R [2020] NSWCCA 107
Hearing dates: 1 May 2020
Date of orders: 25 May 2020
Decision date: 25 May 2020
Before: Hoeben CJ at CL at [1]
Walton J at [2]
Harrison J at [140]
Decision:
(1) Grant leave to appeal with respect to ground 3 of the application for leave to appeal against sentence.
(2) Dismiss the appeal.
Catchwords:
CRIMINAL – conviction appeal – juror with legal training – whether jurisdictional error – denial of jurisdiction – section 53B of the Jury Act – discretion to discharge – trial judge cognisant of discretion

CRIMINAL – appeal against sentence – severity – sexual offences – manifest excess – objective gravity of the offending – indicative sentences – whether amenable to appeal – structure of sentence – subjective factors of age and health – not manifestly excessive
EVIDENCE – fresh evidence – new evidence – circumstances COVID-19 for persons
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedures) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Jury Act 1977 (NSW)
Legal Profession Uniform Law 2014 (NSW)
Cases Cited: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Borg v R; Gray v R [2020] NSWCCA 67
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Doe v R [2013] NSWCCA 248
Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15
Goodwin (1990) 51 A Crim R 328
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v R [2018] NSWCCA 2
JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
Kerr v R (2016) 78 MVR 191; [2016] NSWCCA 218
Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Abbott (1985) 17 A Crim R 355
R v Ehrenburg (Unreported, Court of Criminal Appeal (NSW), 14 December 1990)
R v Smith (1987) 27 A Crim R 315
R v Wilson (No 5) [2018] NSWSC 1077
Scott v R [2020] NSWCCA 81
Vale v R (2016) 77 MVR 194; [2016] NSWCCA 154
Vuni v R [2006] NSWCCA 171
Category: Principal judgment
Parties: Maximo Cabezuela (Appellant)
Regina (Respondent)
Representation:
Counsel:
G Wendler (Appellant)
E Wilkins SC (Respondent)
Solicitors:
Universal Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/188417
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

11 May 2018

Before:

Blackmore SC DCJ (Trial); Huggett DCJ (Sentence)

File Number(s):

2016/188417

Judgment

HOEBEN CJ AT CL: I agree with Walton J and the orders which he proposes.
WALTON J: On 11 April 2018, Maximo Cabezuela (“the appellant”) was arraigned…

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 Cabezuela v R

Details

AGLC: Cabezuela v The Queen [2020] NSWCCA 107
Case: [2020] NSWCCA 107
Decision Date: 25 May 2020

CaseChat Overview and Summary

The appeal by Cabezuela was heard by the High Court against both his conviction and the severity of his sentence. Cabezuela was convicted of serious sexual offences and was sentenced to imprisonment. His appeal included challenges to the validity of his conviction due to the presence of a juror with legal training, and to the severity of his sentence. The court was required to determine whether the trial judge's awareness of the discretion to discharge a juror under section 53B of the Jury Act constituted a jurisdictional error. Additionally, the court had to assess whether the sentence imposed was manifestly excessive considering the nature of the offences and the sentencing principles applicable.

The High Court held that the trial judge’s awareness of the discretion to discharge a juror under section 53B of the Jury Act did not constitute a jurisdictional error. The court found that the trial judge’s conduct did not prevent a fair trial and therefore did not lead to a denial of jurisdiction. In relation to the sentence, the court considered the objective gravity of the offending, the structure of the sentence, and the subjective factors such as the offender's age and health. The court concluded that the sentence was not manifestly excessive and that the appeal against the severity of the sentence was not successful.

The final orders of the court were that the appeal against the conviction was dismissed, and the appeal against the severity of the sentence was also dismissed. The High Court upheld the original conviction and sentence, finding no grounds for altering them on appeal.

Orders