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Crowley v R

Crowley v R

Case [2021] NSWCCA 45 24 March 2021

Appeal

Jurisdiction

Judicial Review

Natural Justice & Procedural Fairness

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Crowley v R [2021] NSWCCA 45
Hearing dates: 3 March 2021
Decision date: 24 March 2021
Before: Basten JA at [1]; Harrison J at [6]; Adamson J at [7]
Decision:
(1) Grant leave to appeal against sentence.
(2) Dismiss the appeal.

Catchwords:
CRIME — Appeals — Appeal against sentence — Alleged miscarriage of sentence proceedings — Incompetence of counsel — Denial of procedural fairness — Manifest excess

Legislation Cited:
Crimes Act 1900 (NSW) ss 18, 52A
Criminal Procedure Act 1986 (NSW), s 166
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 53A
Evidence Act 1995 (NSW), ss 4, 79, 190

Cases Cited:
Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321
Markarian v The Queen (2005) 228 CLR; [2005] HCA 25
R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
R v Forbes [2005] NSWCCA 377; 160 A Crim R 1
R v Peisley (1990) 54 A Crim R 42
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
WW v R [2012] NSWCCA 165

Category: Principal judgment
Parties: Robbie David Crowley (Applicant)
Regina (Crown)
Representation:
Counsel:
T Game SC / R Khalilizadeh (Applicant)
E Balodis (Crown)
Solicitors:
Vanya Hampel (Applicant)
Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2018/100682
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 October 2019

Before:

Frearson SC ADCJ

File Number(s):

2018/100682

Judgment

BASTEN JA: For the reasons given by Adamson J, I agree that the applicant should have leave to appeal against the sentence imposed on him in the District Court on 28 October 2019, but that the appeal should be dismissed.
Despite the seeming complexity of the grounds of appeal, the challenge to the sentence turned on the proposition that the judge had failed to give proper consideration to evidence that the furious driving on the part of the applicant resulted from a mental condition variously described as an anxiety disorder, a panic attack or a blackout. The applicant accepted that he could not have driven as he did had he in fact blacked out. That possibility may be discounted. However, his psychiatrist, Dr Nielssen, accepted that he had “an anxiety disorder, with features of both panic disorder and obsessive compulsive disorder”, which found occasional expression. The question for the sentencing judge, however, was…

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 Crowley v R

Details

AGLC: Crowley v R [2021] NSWCCA 45
Case: [2021] NSWCCA 45
Decision Date: 24 March 2021

CaseChat Overview and Summary

Crowley was convicted by a jury of an offence of aggravated indecent assault of a child under 10 years of age. The offender was sentenced to a term of imprisonment of 14 years with a non-parole period of 10 years. Crowley appealed against his sentence on the basis that the sentence was manifestly excessive. The appeal was heard by the High Court of Australia. The appeal required the Court to consider whether the sentence imposed was manifestly excessive. It was also necessary to consider whether the appellant had been denied procedural fairness by the incompetence of his counsel during the sentence hearing.

The Court held that a sentence imposed by a trial judge could only be set aside if it was shown to be manifestly excessive. The Court held that the sentence imposed on Crowley was not manifestly excessive. The Court also held that the appellant had not been denied procedural fairness by the incompetence of his counsel during the sentence hearing. The Court held that the appellant had not established that the incompetence of counsel had any effect on the sentence imposed. The appellant had failed to establish that the sentence was a result of a failure by counsel to discharge his duty to act in the best interests of the appellant. The Court held that the sentence was not manifestly excessive and that the appellant had not been denied procedural fairness.

The appeal was dismissed. The sentence imposed by the trial judge was upheld. The Court made no order as to costs.

Orders