Campbell-Stephen v Regina - [2010] NSWCCA 204

New South Wales
Court of Criminal Appeal

CITATION: CAMPBELL-STEPHEN v REGINA [2010] NSWCCA 204

HEARING DATE(S): Wednesday 25 August 2010

JUDGMENT DATE:
14 September 2010

JUDGMENT OF: Basten JA at 1; Hall J at 2; Latham J at 52

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW- appeal- sentencing – sentencing judge wrongly excluded indirect provocation from the operation of s.21A (3) (c) of the Crimes (Sentencing Procedure) Act 1999 – appeal dismissed - CRIMINAL LAW- appeal- sentencing – failure of sentencing judge to give proper weight to provocation – appeal dismissed - CRIMINAL LAW- appeal- sentencing – sentencing judge erred in characterisation of the offence as mid range – appeal dismissed - CRIMINAL LAW- appeal- sentencing – sentence manifestly excessive – appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Regina v Kenney [1983] 2 VR 470
Regina v Mitchell & Gallagher (2007) 11 A Crim R 94

PARTIES: Douglas George CAMPBELL-STEPHEN
v REGINA

FILE NUMBER(S): CCA 2009/8207

COUNSEL: C: D Arnott SC
A: I McClintock SC/M Coroneos

SOLICITORS: C: S Kavanagh
A: Hanby & Associates

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/8207

LOWER COURT JUDICIAL OFFICER: Hock DCJ

LOWER COURT DATE OF DECISION: 30 October 2009

2009/8207

BASTEN JA
HALL J
LATHAM J
TUESDAY 14 SEPTEMBER 2010

DOUGLAS GEORGE CAMPBELL-STEPHEN v REGINA

Judgment

1 BASTEN JA: I agree with the orders proposed by Hall J, for the reasons he gives.

2 HALL J: The applicant seeks leave to appeal in respect of a sentence imposed on him in the District Court on 30 October 2009 following a plea of guilty in the Local Court to an offence of recklessly inflicting grievous bodily harm pursuant to s.35(2) of the Crimes Act 1900.

3 The prescribed maximum penalty for such an offence is a term of imprisonment of 10 years and the offence has a standard non-parole period of 4 years. The applicant requested that a further matter of common assault be taken into account on a Form 1.

4 The sentence imposed on the applicant was for a total term of 3 years and 6 months imprisonment with a non-parole period of 2 years commencing from the date of sentence, 30 October 2009.

Appeal grounds

5 In the Notice of Appeal filed on 11 June 2010, the grounds upon which the applicant seeks leave to appeal are as follows:-

“1. The sentencing judge erred in her determination that the offender was provoked but

not by the victim

, so as to exclude the provocation from the operation of s.21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999.

2. The sentencing judge erred in failing to properly take into account, or in failing to give proper weight, to provocation generally.

3. The sentencing judge erred in characterising the offence as one of within a mid-range of seriousness without properly determining the effect of provocation and other matters on such a determination.

4. In the circumstances of the case, the sentence…

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 Campbell-Stephen v Regina

Details

AGLC: Campbell-Stephen v Regina [2010] NSWCCA 204
Case: [2010] NSWCCA 204
Decision Date: 14 September 2010

CaseChat Overview and Summary

In the matter of Campbell-Stephen versus Regina, the appeal focused on the sentencing of the appellant, who had been convicted of a serious criminal offence. The nature of the dispute pertained to the sentencing process, where the appellant argued that the original sentencing judge had made errors in the assessment and application of the law, particularly in relation to the operation of indirect provocation and the characterisation of the offence. The High Court of Australia was tasked with reviewing the decision of the lower court.

The court was required to address several legal issues, including whether the sentencing judge had correctly applied the principles of indirect provocation as per section 21A (3) (c) of the Crimes (Sentencing Procedure) Act 1999. Another issue was whether the sentencing judge had appropriately considered the mitigating factor of provocation and whether there had been an error in characterising the offence as mid-range, which could have implications for the severity of the sentence. The court also examined if the sentence imposed was manifestly excessive.

The court determined that the sentencing judge had not erred in excluding indirect provocation from the operation of the specified section of the Act, nor had there been a failure to give proper weight to provocation. The judge's characterisation of the offence as mid-range was deemed to be within the bounds of acceptable judicial discretion, and the sentence was not found to be manifestly excessive. The appeal was ultimately dismissed, with the court upholding the original sentence imposed by the lower court.

Orders