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Cherry v R

Cherry v R

Case [2017] NSWCCA 150 28 June 2017

Sentencing

Aggravated & Exemplary Damages

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cherry v R [2017] NSWCCA 150
Hearing dates: 16 June 2017
Date of orders: 28 June 2017
Decision date: 28 June 2017
Before: Macfarlan JA at [1];
Johnson J at [2];
Harrison J at [87]
Decision:
Leave to appeal against sentence granted. Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal –– multiple domestic violence offences committed against partner– assault occasioning actual bodily harm under s.59(1) Crimes Act 1900 (three counts) – four offences of assault on Form 1 –break enter and commit serious indictable offence (robbery) under s.112(2) Crimes Act 1900 committed against different victim – aggregate sentence of imprisonment of four years with balance of term of two years – claim of error in finding that s.112(2) offence was in the mid-range of seriousness – no error demonstrated – claim that insufficient weight given to the issue of rehabilitation – no error demonstrated – claim that aggregate sentence manifestly excessive – repeated domestic violence offences – breaches of conditional liberty – applicant subject to bail and apprehended domestic violence order intended to protect partner – need for denunciation, general deterrence and specific deterrence – serious s.112(2) offence committed against different victim – aggregate sentence not manifestly excessive – appeal dismissed
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Crimes Amendment (Strangulation) Act 2014
Cases Cited: Browning v R [2015] NSWCCA 147
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Marshall v R [2007] NSWCCA 24
MM v R [2016] NSWCCA 235
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Fang (No. 4) [2017] NSWSC 323
R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Kilic (2016) 91 ALJR 131; [2016] HCA 48
Vaiusu v R [2017] NSWCCA 71
Texts Cited: ---
Category: Principal judgment
Parties: Christopher Cherry (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr RJ Webb (Applicant)
Mr NJ Adams (Respondent)
Solicitors:
Macquarie Lawyers Burwood (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/373317; 2013/374639
Publication restriction: ---
Decision under appeal

Court or tribunal:

Sydney District Court

Jurisdiction:

---

Citation:

---

Date of Decision:

4 March 2016

Before:

Her Honour Judge Sweeney

File Number(s):

2013/373317; 2013/374639

Judgment

MACFARLAN JA: I agree with Johnson J.
JOHNSON J: The Applicant, Christopher Cherry, seeks leave to appeal against an aggregate sentence imposed by her Honour Judge Sweeney at the Sydney District Court on 4 March 2016 with respect to a number of domestic violence offences and an offence of aggravated break and enter and commit robbery contrary to s.112(2) Crimes Act 1900.

The Offences and Sentence Under Appeal

The Applicant pleaded guilty…

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 Cherry v R

Details

AGLC: Cherry v R [2017] NSWCCA 150
Case: [2017] NSWCCA 150
Decision Date: 28 June 2017

CaseChat Overview and Summary

The case of Cherry v R involved the appellant, Cherry, appealing against his sentence for multiple domestic violence offences committed against his partner and a separate offence committed against a different victim. The appeal was heard in the court of appeal. The appellant was convicted of three counts of assault occasioning actual bodily harm under section 59(1) of the Crimes Act 1900, and one count of break enter and commit serious indictable offence (robbery) under section 112(2) of the same Act. The trial judge sentenced the appellant to an aggregate term of imprisonment of four years, with the balance of the term of two years. Cherry argued that the sentence was manifestly excessive, citing the need for rehabilitation and the fact that the robbery offence was not in the mid-range of seriousness as claimed by the trial judge.

The court considered the appellant's claims of error in sentencing. Firstly, Cherry argued that the trial judge erred in finding that the section 112(2) offence was in the mid-range of seriousness. The court found no error in this regard, as the trial judge had properly considered the nature and circumstances of the offence. Secondly, Cherry claimed that insufficient weight was given to the issue of rehabilitation. The court determined that this was not the case, as the trial judge had considered the appellant's prospects for rehabilitation and found them to be poor. Finally, Cherry argued that the aggregate sentence was manifestly excessive. The court found that the sentence was not manifestly excessive, taking into account the need for denunciation, general deterrence, and specific deterrence, as well as the repeated domestic violence offences and breaches of conditional liberty.

In conclusion, the court dismissed the appeal, finding no error in the trial judge's sentencing decision. The aggregate sentence of imprisonment of four years, with the balance of the term of two years, was deemed to be appropriate in the circumstances of the case. The court emphasised the need for denunciation, general deterrence, and specific deterrence, as well as the appellant's history of domestic violence and breaches of conditional liberty. The final orders of the court were that the appeal be dismissed, and the original sentence upheld.

Orders