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Duncombe v R

Duncombe v R

Case [2013] NSWCCA 271 14 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Duncombe v R [2013] NSWCCA 271
Hearing dates: 21 October 2013
Decision date: 14 November 2013
Before: Hoeben CJ at CL at [1];
Johnson J at [2];
Bellew J at [66]
Decision:
1. Application for extension of time to appeal against sentence refused.
2. The Court recommends to the Department of Corrective Services that the Applicant be provided with a proper opportunity to undertake, at the earliest possible time, a custodial program or programs with respect to anger management and violent offending.

Catchwords: CRIMINAL LAW - sentence appeal - asserted Muldrock error - application for extension of time in which to appeal - Applicant sentenced in December 2010 - Applicant pleaded guilty to one count of causing grievous bodily harm contrary to s.33(1)(b) Crimes Act 1900 - offence subject to a standard non-parole period - offence of affray taken into account on Form 1 - sole ground of appeal asserted Muldrock error - held that sentencing Judge applied two-stage approach - whether lesser sentence warranted - nature of offence under s.33 - wide gap between maximum penalty of 25 years and standard non-parole period of seven years - attack with sledgehammer to head of victim - offence committed in breach of conditional liberty - limited intellectual capacity of Applicant - held no lesser sentence warranted - insufficient prospects of success - application for extension of time in which to appeal refused
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Firearms Act 1996
Cases Cited: Abdul v R [2013] NSWCCA 247
AM v R [2012] NSWCCA 203
Anderson v R [2008] NSWCCA 211
Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Hamieh [2010] NSWCCA 189
R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94
R v Najem [2008] NSWCCA 32
R v Wright [2009] NSWCCA 3
Sproates v R [2009] NSWCCA 29
Thalari v R [2009] NSWCCA 170; 75 NSWLR 307
Texts Cited: ---
Category: Principal judgment
Parties: Sean Andrew Duncombe (Applicant)
Regina (Respondent)
Representation: Counsel:
Ms BJ Rigg (Applicant)
Ms N Noman SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/11080
Publication restriction: ---
Decision under appeal

Citation:

---

Date of Decision:

2010-12-15 00:00:00

Before:

Freeman DCJ

File Number(s):

2010/11080

Judgment

HOEBEN CJ at CL: I agree with Johnson J and join in his Honour's recommendation that the Applicant be provided with an opportunity to undertake a program with respect to anger management and violent offending while in custody. This should occur as soon as possible.

JOHNSON J: The Applicant, Sean Andrew Duncombe, seeks an extension of time to appeal with respect to a sentence imposed in the District Court on 15 December 2010.

The Offence and Sentence

The Applicant pleaded guilty to a charge of inflicting grievous bodily harm with intent to cause grievous…

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 Duncombe v R

Details

AGLC: Duncombe v R [2013] NSWCCA 271
Case: [2013] NSWCCA 271
Decision Date: 14 November 2013

CaseChat Overview and Summary

In Duncombe v R, the appellant sought to appeal against his sentence on the basis of an alleged error in the application of the two-stage approach outlined in Muldrock v R. The case was heard in the Court of Criminal Appeal, which was asked to determine whether the sentencing judge had erred in applying the two-stage approach when determining the appellant's sentence and whether the appeal should be allowed despite being filed outside the statutory time limit. The appellant had pleaded guilty to causing grievous bodily harm by striking the victim on the head with a sledgehammer, an offence which carried a standard non-parole period of seven years. The Court of Criminal Appeal was required to decide whether the sentencing judge had erred in applying the two-stage approach, and if so, whether the appellant was entitled to a lesser sentence. The Court held that the sentencing judge had applied the two-stage approach correctly, noting that the attack was of a serious and violent nature and that the appellant had limited intellectual capacity but was in breach of conditional liberty at the time of the offence. The Court held that the nature of the offence and the circumstances of the appellant did not warrant a lesser sentence and that the appeal had insufficient prospects of success. The Court also held that the application for an extension of time in which to appeal was not warranted, as the appellant had not demonstrated any special circumstances that would justify an extension. The Court dismissed the appeal and refused the application for an extension of time.

Orders