Drew v R

Case [2016] NSWCCA 310 16 December 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Drew v R [2016] NSWCCA 310
Hearing dates: 12 October 2016
Decision date: 16 December 2016
Before: Gleeson JA at [1]
Fagan J at [2]
N Adams J at [20]
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – serious domestic violence-related stabbing - whether sentencing judge erred in finding that the offence was aggravated by reason of the fact that the victim was Aboriginal and therefore vulnerable – whether sentencing judge erred in finding that offence was in the “worst case” category - whether sentence manifestly excessive
CRIMINAL LAW – offences of domestic violence – whether Indigenous victims vulnerable as a class because of “culture of ostracism and silence” – need for evidence in each case to establish beyond reasonable doubt that particular victim was a member of a vulnerable class of victims
Legislation Cited: Crimes Act 1900 (NSW), ss 18, 27, 33(1)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
Crimes (Sentencing Procedure) Act 1999, s 21A(2)(l)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Procedure Act 1986 (NSW), s 166, Chapter 6, Part 4B
Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 (NSW)
Evidence Act 1995 (NSW), s 38(1)
Cases Cited: Abdulrahman v R [2016] NSWCCA 192
AM v R [2012] NSWCCA 203
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
De Jong v R; Tuimaualuga v R; Zechel v R: Puru v R [2015] NSWCCA 32
Dennis v R [2015] NSWCCA 61
Fernando v The Queen (1992) 76 A Crim R 58
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hudson v R [2016] NSWCCA 30
Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46
Jonson v R [2016] NSWCCA 286
Kennedy v R [2016] NSWCCA 123
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kiernan v R [2016] NSWCCA 12
Little v Regina [2010] NSWCCA 201
Markarian v The Queen [2006] 228 CLR 357; [2005] HCA 25
McCullough v R (2009) 194 A Crim R 429; [2009] NSWCCA 94
Mulato v R [2006] NSWCCA 282
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Ollis v R [2011] NSWCCA 155
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Pasinis v R [2014] VSCA 97
Perrin v R [2006] NSWCCA 64
The Queen v Bara [2006] NTCCA 17
R v Ali [2010] NSWCCA 35
R v Betts [2015] NSWCCA 39
R v Dacey [2014] NSWSC 1452
R v Daley [2010] NSWCCA 223
R v Dyer [2006] NSWCCA 274
Regina v Twala (NSWCCA, unreported, 4 November 1994)
R v Hamid (2006) 164 A Crim R 179; [2006] NSWCCA 302
R v Hudson [2013] VSC 184
R v Ibrahami [2005] NSWCCA 153
R v McNaughton (2006) 66 NSWLR 566; [2006]…

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 Drew v R

Details

AGLC: Drew v R [2016] NSWCCA 310
Case: [2016] NSWCCA 310
Decision Date: 16 December 2016

CaseChat Overview and Summary

In the High Court of Australia, the case of Drew v R involves the appellant, Drew, who appeals against his sentence for a domestic violence-related stabbing of his partner. Drew was found guilty of the offence and sentenced to imprisonment by the sentencing judge, who identified several aggravating factors, including that the victim was Aboriginal and therefore vulnerable. The appeal challenges the findings that the offence was aggravated by the victim's Aboriginality and that the offence was in the "worst case" category, as well as the overall length of the sentence.

The central legal issues before the court were whether the sentencing judge erred in finding that the offence was aggravated by the victim's Aboriginality and whether the offence was appropriately categorised as in the "worst case". Additionally, the court needed to determine if the sentence was manifestly excessive. The appellant argued that the sentencing judge had incorrectly assumed that Indigenous victims are inherently vulnerable due to a "culture of ostracism and silence", and that there was insufficient evidence to establish beyond reasonable doubt that the particular victim was a member of a vulnerable class.

The court found that the sentencing judge had indeed erred by assuming a generalised vulnerability of Indigenous victims without specific evidence pertaining to the particular victim. The court emphasised that each case must be assessed individually to determine if the victim was a member of a vulnerable class. The court held that the sentencing judge's findings did not align with the necessary legal standards and thus constituted an error. Furthermore, the court considered the sentence to be manifestly excessive due to the misapplication of aggravating factors. Consequently, the appeal was upheld, and the matter was remitted to the sentencing court for re-sentencing.

The final orders of the court were that the appeal be allowed, the conviction be upheld, and the matter be remitted to the sentencing court for re-sentencing, taking into account the correct legal principles. The court did not reduce the sentence outright but directed that the sentencing process be revisited to ensure it complied with legal standards, particularly regarding the identification of vulnerable victims and the appropriate categorisation of the offence.

Orders