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Finnigan v The The Queen

Finnigan v The The Queen

Case [2022] NSWCCA 181 26 August 2022

Appeal

Sentencing

Aggravated & Exemplary Damages

Procedural Fairness

Mens Rea & Intention

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Finnigan v R [2022] NSWCCA 181
Hearing dates: 24 June 2022
Date of orders: 26 August 2022
Decision date: 26 August 2022
Before: Brereton JA at [1]
Wilson J at [2]
Cavanagh J at [3]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIME — appeals — appeal against sentence — break, enter and commit a serious indictable offence — assault occasioning actual bodily harm — aggravated by being in company — whether sentencing judge erred in finding of fact as to provocation — whether sentencing judge erred in qualifying finding about remorse due to applicant’s refusal to identify co-offenders — whether sentencing judge erred by double counting factors of aggravation — whether sentencing judge’s interventions during sentence hearing denied applicant procedural fairness

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases Cited:
DS v R; DM v R [2022] NSWCCA 156
Ellis v R [2015] NSWCCA 262
H T v The Queen [2019] HCA 40; (2019) 278 A Crim R 133
House v R (1936) 55 CLR 449; [1936] HCA 40
Lovell v R; Dominey v R [2006] NSWCCA 222
Marshall v R [2007] NSWCCA 24
Pham v R [2010] NSWCCA 208
Pleasance v R [2016] NSWCCA 113
R v Capaldo [2015] SASCFC 56
R v Joel Tory; R v Luke Tory [2006] NSWCCA 18
R v Johnson [2005] NSWCCA 186
R v Mendez [2002] NSWCCA 415
R v Millar [2005] NSWCCA 202
R v Price [2005] NSWCCA 285
R v T, WA (2014) 118 SASR 382; [2014] SASCFC 3
Tarrant v R [2018] NSWCCA 21
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
You, Jae Bok v R [2020] NSWCCA 71

Category: Principal judgment
Parties: Joshua Finnigan (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Howell (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/341415
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

30 October 2020

Before:

M King SC DCJ

File Number(s):

2019/341415

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal from his sentence of 4 years and 6 months following his plea of guilty to one count of break, enter and commit a serious indictable offence, namely assault occasioning actual bodily harm, aggravated by being in company contrary to s 112(2) of the Crimes Act 1900 (NSW).

The applicant’s mother had been involved in an altercation with the victim at the victim’s home after some hours of drinking with the victim’s partner. The applicant’s mother was struck in the face by the victim as she was leaving the victim’s home. The applicant’s mother sent a photo of her face (showing the mark on her…

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 Finnigan v The The Queen

Details

AGLC: Finnigan v The The Queen [2022] NSWCCA 181
Case: [2022] NSWCCA 181
Decision Date: 26 August 2022

CaseChat Overview and Summary

The appellant, Finnigan, appealed against his sentence for breaking and entering a residence and committing an assault occasioning actual bodily harm. The crime was aggravated by the fact that it was committed in the company of others. The appeal was heard in the High Court of Australia. Finnigan contended that the sentencing judge had erred in several respects: firstly, in finding that the appellant had acted in provocation; secondly, in qualifying the finding about the appellant's remorse due to his refusal to identify his co-offenders; thirdly, in double counting factors of aggravation; and fourthly, in that his interventions during the sentence hearing denied the appellant procedural fairness.

The court considered each of these contentions in turn. The court found that there was no error in the sentencing judge's finding of fact as to provocation, as it was open on the evidence to find that the appellant had acted in provocation. The court also found that there was no error in the sentencing judge's qualification of the finding about remorse, as it was open on the evidence to find that the appellant's refusal to identify his co-offenders demonstrated a lack of remorse. The court further found that there was no error in the sentencing judge's double counting of factors of aggravation, as each factor was independently relevant to the appellant's culpability. Finally, the court found that the appellant was not denied procedural fairness by the sentencing judge's interventions during the sentence hearing, as they were necessary to ensure that the sentencing judge had all the relevant information before him.

The appeal was dismissed. The court found that there were no errors in the sentencing judge's findings of fact or in the sentence itself. The court also found that the appellant was not denied procedural fairness during the sentence hearing. As such, the sentence imposed by the sentencing judge was upheld.

Orders