Ebsworth v The Queen - [2020] NSWCCA 229

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ebsworth v R [2020] NSWCCA 229
Hearing dates: 17 August 2020
Decision date: 11 September 2020
Before: Basten JA at [1];
Rothman J at [2];
Price J at [70]
Decision:
(1)   Extension of time granted to allow the Notice of Application for Leave to Appeal to be filed on 27 May 2020;
(2)   Leave to appeal granted;
(3)   Appeal dismissed.

Catchwords:
CRIME – SENTENCE APPEAL – serious domestic violence – choking of victim occasioning actual bodily harm – permissible and appropriate for sentencing judge to take account of acts leading up to choking – taken into account to show three offences part of one course of conduct for totality purposes – no De Simoni issue – no error in characterisation of objective seriousness – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), ss 29, 33B(1)(a), 37(2), 112(2), 195(1)
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
Criminal Procedure Act 1986 (NSW), s 166
Crimes (Sentencing Procedure) Act 1999 (NSW), s 9

Cases Cited:
Bugmy v R (1990) 169 CLR 525; [1990] HCA 18
LN v R [2020] NSWCCA 131
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

Category: Principal judgment
Parties: Ryan Mark Ebsworth (Applicant)
Crown (Respondent)
Representation:
Counsel:
H White (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2017/301951
Decision under appeal

Court or tribunal:

Armidale District Court

Jurisdiction:

Crime

Date of Decision:

15 May 2019

Before:

McLennan SC DCJ

File Number(s):

2017/301951

Judgment

BASTEN JA: I agree with Rothman J.
ROTHMAN J: The applicant seeks leave to appeal against an aggregate sentence imposed upon him on 15 May 2019 by McLennan SC DCJ, sitting in the District Court at Armidale. The sentence was imposed for a series of domestic violence related offences. On 4 March 2019, the applicant pleaded guilty in the District Court to three offences and sought to have five further charges taken into account on a Form 1. The aggregate sentence imposed by his Honour was a head sentence of five years and six months’ imprisonment, including a non-parole period of three years and six months.
The offences to which the applicant pleaded guilty are:

Count 1: Break, enter and commit a serious indictable offence (assault occasioning actual bodily harm) in circumstances of aggravation (knowing a person was present), contrary to s 112(2) of the Crimes Act1900 (NSW), the maximum penalty for which is 20 years’ imprisonment and there is a standard non-parole period of 5 years’ imprisonment;

Count 2: Use an offensive weapon (a knife) with intent to assault, contrary to s 33B(1)(a) of the Crimes Act (NSW), the maximum penalty for which is 12 years’ imprisonment; and

Count 3: Use an offensive weapon (a knife) with intent to assault, contrary to s 33B(1)(a) of the Crimes Act (NSW), the maximum penalty for which…

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 Ebsworth v The Queen

Details

AGLC: Ebsworth v The Queen [2020] NSWCCA 229
Case: [2020] NSWCCA 229
Decision Date: 11 September 2020

CaseChat Overview and Summary

The case of Ebsworth v The Queen involved the appellant who was appealing against the sentence imposed for serious domestic violence, specifically the act of choking the victim which caused actual bodily harm. The appeal was heard in the High Court of Australia. The appellant argued that the sentencing judge erred in considering the acts leading up to the choking incident, claiming it amounted to double counting and a De Simoni issue. The respondent, the Crown, argued that the acts were properly considered as part of the totality principle for sentencing.

The central legal issue before the court was whether the sentencing judge erred in considering the acts leading up to the choking incident when determining the appropriate sentence. The court had to decide whether this constituted double counting or an issue of cumulative sentencing, as described in De Simoni v The Queen. Additionally, the court needed to examine whether the sentencing judge appropriately characterised the objective seriousness of the offence and if there was any error in this regard.

In its judgment, the court held that the sentencing judge did not err in considering the acts leading up to the choking incident. The court found that these acts were appropriately taken into account to demonstrate that the three offences were part of one course of conduct for the purposes of determining the overall sentence. The court emphasised that there was no De Simoni issue present and confirmed that the characterisation of the objective seriousness of the offence was correct. Consequently, the appeal was dismissed, and the original sentence was upheld.

No additional orders were made by the court beyond the dismissal of the appeal and the affirmation of the original sentence.

Orders