CATCHWORDS:
CRIMINAL LAW
appeal against sentence
maliciously inflicting grievous bodily harm in company
whether error in factual findings by sentencing judge
whether error in failure to apply 25 per cent discount for guilty plea
whether error in appointment of applicant's role in commission of offence
whether failure to give sufficient weight to subjective circumstances

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Evidence Act 1995

CATEGORY:
Principal judgment

CASES CITED:
APT v R [2009] NSWCCA 230
House v The King (1936) 55 CLR 499
McKenna v R [2007] NSWCCA 113
R v Borkowski [2009] NSWCCA 102
R v Johnstone [2004] NSWCCA 307
R v Mitchell, R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94
R v SY & Anor [2003] NSWCCA 291
R v Scott [2003] NSWCCA 286
Waters v R [2007] NSWCCA 219

TEXTS CITED:

DECISION:
1. Leave to appeal granted.
2. Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/2748
2007/8395
ALLSOP P
FULLERTON J
McCALLUM J
18 DECEMBER 2009

MICHAEL JOHN DUFFY v R
SHANE KENNETH MANGAN v R

JUDGMENT

ALLSOP P: I agree with Fullerton J.
FULLERTON J: Shane Kenneth Mangan and Michael John Duffy seek leave to appeal against sentences imposed in the District Court at Dubbo on 27 October 2008 after they both entered pleas of guilty on their arraignment on 19 June 2008 to maliciously inflicting grievous bodily harm in company contrary to s 35(2) of the Crimes Act 1900.
The pleas were accepted in discharge of an indictment where the objectively more serious offence of intentionally inflicting grievous bodily harm provided for in s 33(2) of the Crimes Act was also charged. That offence carries a maximum penalty of 25 years and a standard non-parole period of 7 years. A maximum penalty of 10 years is provided for a breach of s 35(2) of the Crimes Act.

Mr Mangan was sentenced to a term of imprisonment comprising a non-parole period of 2 years and 6 months with a balance of term of 18 months to date from 24 October 2008. Mr Duffy was sentenced to a term of imprisonment comprised of a non-parole period of 15 months with a balance of term of 7 months to date from 27 October 2008. The sentencing judge allowed a discount of 20 per cent for the…

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 Duffy v R

Details

AGLC: Duffy v R [2009] NSWCCA 304
Case: [2009] NSWCCA 304
Decision Date: 18 December 2009

CaseChat Overview and Summary

The appellant, Duffy, was convicted for the offence of maliciously inflicting grievous bodily harm in company. The appeal was against the sentence imposed by the sentencing judge. The central issue was whether the sentencing judge made any errors in factual findings, the application of a 25 per cent discount for the guilty plea, the characterisation of the appellant's role in the commission of the offence, and whether the judge failed to give sufficient weight to the subjective circumstances surrounding the offence. The Court of Appeal was tasked with reviewing these points to determine if the sentence was appropriate.

In examining the first point, the court found that the sentencing judge had made no errors in factual findings. The evidence presented during the trial was consistent, and the judge's conclusions were well-supported by the material before the court. Regarding the 25 per cent discount for the guilty plea, the court concluded that the sentencing judge had correctly assessed the plea discount, applying it in accordance with legal principles. Concerning the role of the appellant, the court determined that the judge had appropriately characterised the appellant's involvement in the offence, considering all the evidence and submissions. Lastly, the court found that the sentencing judge had given adequate consideration to the subjective circumstances, including the appellant's background and the context of the offence.

The Court of Appeal upheld the sentence imposed by the sentencing judge, finding no errors in the judge's factual findings, application of the guilty plea discount, characterisation of the appellant's role, or consideration of the subjective circumstances. Consequently, the appeal against the sentence was dismissed. The final orders of the court were to maintain the original sentence, with no changes to the terms or duration of the punishment imposed.

Orders