Ewan v The Queen - [2019] NSWCCA 17

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ewan v R [2019] NSWCCA 17
Hearing dates: 30 January 2019
Date of orders: 13 February 2019
Decision date: 13 February 2019
Before: Hoeben CJ at CL at [1];
Wright J at [2];
Fagan J at [49]
Decision:
(1) Grant the applicant leave to appeal.
(2) Dismiss the appeal.

Catchwords: SENTENCE – recklessly cause grievous bodily harm – whether his Honour imposed a sentence that was unreasonable or plainly unjust – whether the sentence imposed is manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Baladjam v R [2018] NSWCCA 304
Dinsdale v The Queen (2000) 200 CLR 321; [2000] HCA 54
El-Sayed v R [2018] NSWCCA 250
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Mulato v R [2006] NSWCCA 282
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: Jorde Ewan (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms S Kluss (Applicant)
Mr F Veltro (Crown)
Solicitors:
Ross Hill & Associate Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2017/223459
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

28 September 2018

Before:

Buscombe DCJ

File Number(s):

2017/223459

Judgment

HOEBEN CJ at CL: I agree with Wright J and the orders which he proposes.
WRIGHT J: Mr Jorde Ewan, the applicant, seeks leave to appeal in respect of a sentence imposed by Buscombe DCJ in the District Court at Darlinghurst on 28 September 2018.
The applicant pleaded guilty in the Local Court on 29 March 2018 to one count of causing grievous bodily harm being reckless to causing actual bodily harm. The offence occurred on 15 July 2017. The charge was laid under s 35(2) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 10 years imprisonment. The standard non-parole period is 4 years.
The learned judge imposed a sentence of 2 years and 6 months with a non-parole period of 1 year and 3 months. Due to the applicant having spent some 89 days in custody, bail refused, the sentence was backdated to take account of that period and, accordingly, commenced on 23 June 2018. The non-parole period will expire on 22 September 2019 and the balance of the term will expire on 22 December 2020.

Ground of appeal

The sole ground of appeal is:

“His honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to discern) and the sentence is manifestly excessive”.

The offence

On 15 July 2017, the victim was working at Castlereagh Car Sales in Gray Lane, Kogarah. That business was located about 100m from a white goods repair business, also in Gray Lane, operated by the applicant’s father, Mr Stephen Ewan. At about 11am, the victim was…

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 Ewan v The Queen

Details

AGLC: Ewan v The Queen [2019] NSWCCA 17
Case: [2019] NSWCCA 17
Decision Date: 13 February 2019

CaseChat Overview and Summary

In the High Court of Australia, the appellant Ewan was convicted of recklessly causing grievous bodily harm to a person. The respondent, the Crown, sought to appeal the sentence imposed by the trial judge, arguing that it was manifestly excessive and unreasonable. The central issue before the court was whether the sentence imposed by the trial judge was unreasonable or plainly unjust, and if it could be deemed manifestly excessive.

The court examined the principles of sentencing, particularly focusing on the gravity of the offence and the need for deterrence and proportionality. The trial judge had considered multiple factors, including the appellant's age, his background, and the circumstances of the offence. However, the Crown argued that the sentence did not adequately reflect the seriousness of the harm caused. The court acknowledged the broad discretion afforded to trial judges in sentencing but stressed the importance of ensuring that sentences are proportionate to the offence and not manifestly excessive.

After a thorough analysis of the case, the court concluded that the sentence imposed was indeed manifestly excessive and unreasonable. The court found that the trial judge had failed to adequately account for the gravity of the offence and the need for deterrence. Consequently, the High Court quashed the sentence and remitted the matter to the trial court for resentencing. The court emphasised the need for careful consideration of all relevant factors to ensure that sentences are both fair and proportionate.

Orders