Car v The Queen - [2009] NSWCCA 138

New South Wales
Court of Criminal Appeal

CITATION: CAR v R [2009] NSWCCA 138
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 29 April 2009

JUDGMENT DATE:
7 May 2009

JUDGMENT OF: Grove J at 1; Buddin J at 2; Price J at 57

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - appeal - sentencing - maliciously causing a poison to be taken by a person thereby endangering that person's life - victim is applicant's young son - whether sentencing judge sentenced applicant for more serious offence - whether applicant's mental illness appropriately taken into account - delay in disposition of proceedings - whether sentence manifestly excessive

CATEGORY: Principal judgment

CASES CITED: R v Bailey [2001] VSC 461
R v Barker, R v Gibson [2006] NSWCCA 20
R v Black [2005] QCA 132
R v Engert (1995) 84 A Crim R 67
R v Hemsley [2004] NSWCCA 228
R v Richards [2002] NSWSC 415
R v Shorten [2005] NSWCCA 106
R v Skipper (1992) 64 A Crim R 260
R v Thew NSWCCA, unreported 25 August 1998
R v Todd [1982] 2 NSWLR 517
The Queen v De Simoni (1981) 147 CLR 383

PARTIES: CAR (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2008/5022

COUNSEL: P Boulten SC (Applicant)
P Miller (Respondent)

SOLICITORS: The Law Practice (Applicant)
S Kavanagh (Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/5022

LOWER COURT JUDICIAL OFFICER: Neild DCJ

2008/5022

GROVE J
BUDDIN J
PRICE J
THURSDAY 7 MAY 2009

CAR v R

Judgment

1 GROVE J: I agree with Buddin J.

2 BUDDIN J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court. The applicant pleaded guilty to maliciously causing a person to take poison, namely carbon monoxide, so as to endanger life. The offence attracts a maximum penalty of 10 years imprisonment but there is no standard non-parole period which applies to it. The applicant was sentenced to a non-parole period of 12 months to date from 31 October 2008 and to a total term of 2 years imprisonment. The commencement date of the sentence was selected by the sentencing judge to reflect the fact that the applicant had spent 13 days in custody prior to being sentenced.

3 The matter proceeded by way of an Agreed Statement of Facts. In those circumstances the factual background to the offence can be briefly stated. The victim of the offence is the applicant’s infant son. The applicant and his wife were in a domestic relationship for a period of five years until they separated in October 2005. They were married in 2003 and a son, whom I shall refer to as A., was born on 12 September 2004.

4 On 9 October 2005 the applicant’s wife took A. and moved out of the family home. A shared custody arrangement was put in place. At about…

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 Car v The Queen

Details

AGLC: Car v The Queen [2009] NSWCCA 138
Case: [2009] NSWCCA 138
Decision Date: 7 May 2009

CaseChat Overview and Summary

The case before the court involved an appeal against a sentence imposed on the applicant, who had been convicted of maliciously causing his young son to ingest poison, thereby endangering the boy's life. The applicant's appeal raised several key issues regarding the severity of the sentence and whether it appropriately considered the applicant's mental health. Additionally, the appeal questioned whether the delay in the proceedings warranted any consideration in the sentencing process.

The central legal issues before the court were whether the sentencing judge had erred in treating the offence as more serious than it actually was and whether the applicant's mental health was adequately factored into the sentencing decision. The applicant also argued that the delay in the disposition of the proceedings should have been considered by the sentencing judge, potentially impacting the overall sentence imposed.

The court examined the sentencing principles and the factors the trial judge should have considered. It was noted that the sentencing judge had appropriately identified the gravity of the offence, taking into account the applicant's mental illness and the circumstances surrounding the delay. The court found that the sentence imposed was not manifestly excessive, considering all relevant factors. The court upheld the sentence, affirming that the trial judge had exercised their discretion appropriately and that the appeal did not succeed on any of the grounds presented.

The court's decision resulted in the dismissal of the applicant's appeal. The original sentence imposed by the trial judge was affirmed, and no further orders were made.

Orders