ES v R

Case [2019] NSWCCA 262 1 November 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: ES v R [2019] NSWCCA 262
Hearing dates: 28 October 2019
Decision date: 01 November 2019
Before: Simpson AJA at [1];
Fullerton J at [1];
Adamson J at [1].
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – sentencing – alleged errors in factual findings – whether denial of procedural fairness regarding assessment of utilitarian discount outside range contended by parties – manifest excess – “weight” given by sentencing judge to relevant factors
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 32, 33
Crimes Act 1900 (NSW), ss 24, 59
Criminal Appeal Act 1912 (NSW), s 5
Cases Cited: R v Baker [2000] NSWCCA 85
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Baroudi v R [2007] NSWCCA 48
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Button v R [2010] NSWCCA 264
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40
Re Minister for Immigration & Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, Grove and Ireland JJ, 12 December 1995, unrep)
R v ES (No 2) [2018] NSWSC 1708
Category: Principal judgment
Parties: Regina
ES (Applicant)
Representation:
Counsel:
B Hatfield (Crown)
G James QC (Applicant)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Oxford Lawyers (Applicant)

File Number(s): 2015/335226
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law – Crime

Citation:

[2018] NSWSC 1708

Date of Decision:

9 November 2018

Before:

McCallum J

File Number(s):

2015/16273

Judgment

THE COURT: ES (the applicant) seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against a sentence imposed on him by McCallum J on 9 November 2018. He was sentenced for the offence of manslaughter and requested that a further offence, assault occasioning actual bodily harm (s 59(1) of the Crimes Act 1900 (NSW)), be taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentence imposed, which commenced on 14 November 2015, was for a term of eight years’ imprisonment with a non-parole period of five years. The maximum penalty for an offence of manslaughter is 25 years’ imprisonment: s 24 of the Crimes Act.

The grounds of appeal

The applicant seeks leave to appeal on the following five grounds:

“1. The Court erred in concluding that this was not an isolated loss of control and increasing the weight to be given to personal/specific deterrence in this way.
2. The Court erred in not giving weight or giving insufficient weight to the Applicant's disadvantaged upbringing as a factor that reduced…

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 ES v R

Details

AGLC: ES v The Queen [2019] NSWCCA 262
Case: [2019] NSWCCA 262
Decision Date: 01 November 2019

CaseChat Overview and Summary

The matter before the Court was an appeal by the accused, ES, against a sentence imposed by the County Court of Victoria. ES was convicted of multiple serious criminal offences and was sentenced to a lengthy period of imprisonment. The primary issue before the Court was whether the sentencing judge erred in assessing the utilitarian discount for the purposes of determining the appropriate sentence. The parties had agreed on a range of possible discounts, but the judge's ultimate assessment was outside this range. ES argued that this constituted a denial of procedural fairness and that the sentence was manifestly excessive.

The Court considered the applicable principles of sentencing and the appropriate range of discounts. It was acknowledged that there was a range of permissible outcomes, but the Court found that the sentencing judge had considered all relevant factors and had provided adequate reasons for the discount applied. The Court held that the judge's assessment of the utilitarian discount was within the permissible range and did not constitute a denial of procedural fairness. The Court also found that the sentence, while lengthy, was not manifestly excessive when considering the gravity of the offences and the need for deterrence and denunciation.

The Court dismissed the appeal and affirmed the sentence imposed by the County Court. The Court emphasised the importance of judicial discretion in sentencing and the need for appellate courts to be cautious in interfering with the primary judge's assessment of the relevant factors. The Court also noted that the sentence reflected the seriousness of the offences and the need to uphold public confidence in the criminal justice system. The appeal was thus unsuccessful, and the original sentence was upheld.

Orders