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Dulihanty v R

Dulihanty v R

Case [2013] NSWCCA 275 14 November 2013

Sentence Appeal

Limitation Periods

Insufficient Prospects of Success

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Dulihanty v R [2013] NSWCCA 275
Hearing dates: 23 October 2013
Decision date: 14 November 2013
Before: Hoeben CJ at CL at [1];
Johnson J at [2];
Latham J at [84]
Decision:
Application for extension of time to appeal against sentence refused

Catchwords: CRIMINAL LAW - sentence appeal - application for extension of time to appeal - Applicant sentenced in June 2009 - Applicant convicted after trial of malicious wounding with intent to cause grievous bodily harm (s.33(1) Crimes Act 1900) - offence subject to a standard non-parole period - Applicant arranges for sex worker to attend unoccupied premises - Applicant attacks victim from behind with weapon inflicting grievous bodily harm - Applicant flees premises leaving victim behind - sole ground of appeal asserted Muldrock error - Muldrock error conceded by Crown - whether some lesser sentence warranted in law - held no lesser sentence warranted - insufficient prospects of success - application for extension of time to appeal refused
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Cases Cited: Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Director of Public Prosecutions v England [1999] 2 VR 258
Douar v R [2005] NSWCCA 455; 159 A Crim R 154
Duncombe v R [2013] NSWCCA 271
Lang v R [2013] NSWCCA 29
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Potts v R [2012] NSWCCA 229
R v Abdul [2013] NSWCCA 247
R v Wilkinson (No. 5) [2009] NSWSC 432
Texts Cited: ---
Category: Principal judgment
Parties: Michael Francis Dulihanty (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr D Barrow (Applicant)
Ms N Noman SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2007/10548
Publication restriction: ---
Decision under appeal

Citation:

---

Date of Decision:

2009-06-23 00:00:00

Before:

His Honour Judge CJ Armitage

File Number(s):

2007/10548

Judgment

HOEBEN CJ at CL: I agree with Johnson J and the order which he proposes.

JOHNSON J: The Applicant, Michael Francis Dulihanty, applies for an extension of time to appeal against sentence imposed at the Sydney District Court on 23 June 2009 for an offence (committed in December 2005) of malicious wounding with intent to cause grievous bodily harm contrary to s.33(1) Crimes Act 1900. The maximum penalty for this offence is imprisonment for 25 years and a standard non-parole period of seven years applies.

The Applicant was convicted following trial by jury which extended from 28 April 2009 to 5 May 2009. On 23 June 2009, his Honour Judge CJ Armitage sentenced the Applicant to imprisonment comprising a non-parole period of five years commencing on 30 March 2009 and expiring on 29 March 2014, with a balance of term of three years commencing on 30 March 2014 and expiring on 29 March 2017.

The Present Application

It appears that, on or about 1 July 2010, the Applicant filed a Notice of Intention to Appeal to 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 Dulihanty v R

Details

AGLC: Dulihanty v R [2013] NSWCCA 275
Case: [2013] NSWCCA 275
Decision Date: 14 November 2013

CaseChat Overview and Summary

Dulihanty v R is a case in which the applicant sought an extension of time to appeal against his sentence. The applicant had been convicted and sentenced in June 2009 for the offence of malicious wounding with intent to cause grievous bodily harm, a crime subject to a standard non-parole period under the Crimes Act 1900. The applicant had arranged for a sex worker to attend an unoccupied premises where he attacked her from behind with a weapon, causing grievous bodily harm, before fleeing the scene. The sole ground of appeal was based on a Muldrock error, which was conceded by the Crown.

The court was tasked with determining whether some lesser sentence was warranted in law, given the Muldrock error. The applicant argued that the sentence was excessive and that a lesser sentence should have been imposed. However, the court found that there were insufficient prospects of success on the appeal. The court held that the sentence was appropriate and that there was no basis for a lesser penalty. Consequently, the application for an extension of time to appeal was refused.

The reasoning of the court was that the Muldrock error, while acknowledged, did not provide a sufficient ground for a lesser sentence. The court found that the sentence imposed was commensurate with the severity of the offence and the harm caused to the victim. The applicant's contention that a lesser sentence was warranted was not substantiated by the evidence or the law. Therefore, the application for an extension of time to appeal was dismissed.

In conclusion, the court determined that the applicant's appeal did not have sufficient prospects of success and refused the application for an extension of time to appeal. The sentence imposed by the original court was upheld as appropriate and no lesser sentence was warranted.

Orders