Crimmins v The Queen - [2019] NSWCCA 268

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Crimmins v R [2019] NSWCCA 268
Hearing dates: 2 October 2019
Date of orders: 08 November 2019
Decision date: 08 November 2019
Before: Bathurst CJ at [1]
Johnson J at [2]
Fullerton J at [3]
Decision:
1. Leave to appeal granted.
2. The appeal is dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – recklessly causing grievous bodily harm – whether sentencing judge erred in failing to find the applicant was remorseful – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hughes v R [2018] NSWCCA 2
R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31
Category: Principal judgment
Parties: Maxwell Crimmins (Applicant)
The Crown (Respondent)
Representation:
Counsel:
J O’Sullivan (Applicant)
M Millward (Crown)
Solicitors:
O’Brien Winter Partners (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2017/248533
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

18 October 2018

Before:

Wilson SC DCJ

File Number(s):

2017/248533

Judgment

BATHURST CJ: I agree with the judgment of Fullerton J and with her Honour’s reasons.
JOHNSON J: I agree with Fullerton J.
FULLERTON J: The applicant seeks leave to appeal a sentence of 6 years with a non-parole period of 4 years imposed by Wilson SC DCJ on 18 October 2018 after entering a plea of guilty in the Local Court to one count of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). The offence was committed on 28 May 2017 and carries a maximum penalty of 10 years’ imprisonment and a standard non-parole period of 4 years. The ratio between the head sentence and the non-parole period was reduced following a finding of special circumstances.
The applicant relies upon two grounds of appeal:

The sentencing judge erred in failing to find that the applicant was remorseful so as to attract s 21A(3)(i) of the Crimes (Sentencing Procedure) Act1999 (NSW) in mitigation of sentence.

The sentence was manifestly excessive.

The facts

The applicant was sentenced on the basis of agreed facts, which were extensively summarised in the sentencing reasons. For present purposes, it is unnecessary to set them out in full.
The applicant and victim were well known to one another, having been friends since high school. They were sharing a home unit with a third person at the time of the offence. They were both aged 23 at that time.
On the evening of 28 May 2017, the applicant, the victim and their flatmate were together at a party. They were all intoxicated. The applicant was ejected from the party because of his level of intoxication and aggression. He left with the victim. They were seen at that time by a police officer arguing and wrestling with each other outside…

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 Crimmins v The Queen

Details

AGLC: Crimmins v The Queen [2019] NSWCCA 268
Case: [2019] NSWCCA 268
Decision Date: 08 November 2019

CaseChat Overview and Summary

The appeal against sentence was heard by the High Court of Australia. The applicant, Crimmins, had been convicted of recklessly causing grievous bodily harm. The issue before the court was whether the sentencing judge erred in failing to find that the applicant was remorseful, and whether the sentence imposed was manifestly excessive. The applicant argued that the sentencing judge should have found that he was remorseful, which would have warranted a lower sentence. The applicant also argued that the sentence imposed was manifestly excessive, given the circumstances of the case.

The court considered the applicant's arguments and noted that the sentencing judge had made findings that the applicant had not shown any remorse for his actions. The court also considered the nature and circumstances of the offence, including the extent of the injuries caused to the victim. The court found that the sentencing judge had not erred in failing to find that the applicant was remorseful, as there was no evidence to support such a finding. The court also found that the sentence imposed was not manifestly excessive, given the seriousness of the offence and the need to deter similar conduct in the future.

The court dismissed the appeal against sentence. The court found that the sentencing judge had considered all relevant factors in imposing the sentence, and that the sentence was not manifestly excessive. The court also found that there was no error in the sentencing judge's failure to find that the applicant was remorseful, as there was no evidence to support such a finding. The final orders of the court were that the appeal against sentence be dismissed, and that the sentence imposed by the sentencing judge be upheld.

Orders