Hoeben CJ at CL at [1]; Bellew J at [125]; Wright J at [126]
Decision:
(1) Leave to rely upon the fresh evidence relating to the applicant’s treatment following the sentence hearing is refused.
(2) Leave to appeal against sentence is allowed but the appeal is dismissed.
Catchwords:
CRIMINAL LAW – sentence appeal – accessory after the fact to murder – interference with evidence and assistance provided after the primary offence – whether sentencing judge erred in assessing objective gravity of the offence – whether there had been prior planning and arranging – whether open to sentencing judge to reject evidence called on behalf of the applicant that his experience in custody would be more onerous than that of the general prison population – whether his Honour adequately or at all took into account the effects of the COVID-19 pandemic – whether open to sentencing judge to substantially dismiss the applicant’s subjective case – whether the applicant should have leave to rely upon fresh evidence as to his medical condition – appeal against sentence dismissed.
On 17 September 2020 the applicant was sentenced by R A Hulme J (the sentencing judge) in the Supreme Court at Sydney to imprisonment for 4 years and 6 months with a non-parole period of 3 years and 4 months for being an accessory after the fact to murder, contrary to…
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.
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AGLC
Doudar v R [2021] NSWCCA 37
Case
[2021] NSWCCA 37
Decision Date
CaseChat Overview and Summary
The appellant, Doudar, appealed against his sentence for being an accessory after the fact to the murder of Mr. Hall. The murder occurred when Mr. Hall was fatally stabbed in the neck by a co-appellant. The appellant assisted in disposing of the body and interfered with evidence. The case was heard in the High Court of Australia. The primary issue was whether the sentencing judge had erred in assessing the objective gravity of the offence. Another issue was whether the sentencing judge could reject the evidence provided on behalf of the appellant that his experience in custody would be more onerous than that of the general prison population. The court considered whether the sentencing judge had adequately taken into account the effects of the COVID-19 pandemic and whether it was open to the sentencing judge to substantially dismiss the appellant’s subjective case. The court also considered whether the appellant should have leave to rely on fresh evidence as to his medical condition.
The court found that the sentencing judge had not erred in assessing the objective gravity of the offence. The court held that it was open to the sentencing judge to reject the evidence provided on behalf of the appellant that his experience in custody would be more onerous than that of the general prison population. The court held that the sentencing judge had not failed to adequately take into account the effects of the COVID-19 pandemic. The court also held that it was open to the sentencing judge to substantially dismiss the appellant’s subjective case. Finally, the court held that the appellant was not entitled to rely on fresh evidence as to his medical condition.
The appeal against sentence was dismissed. The court found that the sentencing judge had not erred in assessing the objective gravity of the offence, and that the appellant’s arguments were without merit. The court held that the sentence imposed was appropriate and did not need to be varied. The court also found that the appellant was not entitled to rely on fresh evidence as to his medical condition. The appeal was dismissed, and the sentence imposed by the sentencing judge was upheld.