GAR v R

Case [2021] NSWCCA 265 10 November 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: GAR v R [2021] NSWCCA 265
Hearing dates: 09 August 2021
Date of orders: 10 November 2021
Decision date: 10 November 2021
Before: Macfarlan JA at [1];
R A Hulme J at [2];
Wright J at [3]
Decision:
(1) The time within which the notice under s 10(1)(a) of the Criminal Appeal Act 1912 (NSW) is required to be given to the Court is extended to 8 April 2021 in relation only to the second and third grounds of appeal, being the ground identified in the document headed Submissions filed on 31 March 2021 and the ground identified in the applicant’s affidavit of 8 April 2021 respectively.
(2) The applicant has leave to appeal in respect of the second and third grounds of appeal.
(3) The appeal is dismissed.

Catchwords:
CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — manifest excess — whether extension of time required in the interests of justice — extension of time refused — appeal dismissed
CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — fresh evidence — where applicant developed cirrhosis after sentencing — where applicant may have been infected with hepatitis B at time of sentencing — whether evidence of medical condition admissible — whether evidence of effect of COVID-19 pandemic admissible — extension of time and leave granted in respect of grounds of appeal based on evidence of medical condition and on evidence of effect of COVID-19 pandemic — appeal dismissed
CRIME — violent offences — robbery armed with offensive weapon with wounding

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW), s 160
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Crimes Act 1900 (NSW), ss 90A, 97, 98, 154A, 578A
Criminal Appeal Act 1912 (NSW), ss 5, 10

Cases Cited:
Anastasiou v R [2010] NSWCCA 100
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
GAR v R (No 1) [2010] NSWCCA 163
GAR v R (No 2) [2010] NSWCCA 164
GAR v R (No 3) [2010] NSWCCA 165
Hayward v R (Cth) [2021] NSWCCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Iglesias v R [2006] NSWCCA 261
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Khoury v R [2011] NSWCCA 118; 209 A Crim R 509
R v Jacobs [2001] NSWCCA 212; 122 A Crim R 409
R v Munday [1981] 2 NSWLR 177
Toller v R [2021] NSWCCA 204
Wright v R [2016] NSWCCA 122; 259 A Crim R 133

Category: Principal judgment
Parties: GAR (Applicant)
Regina (Respondent)
Representation:
Applicant (self-represented)

Counsel:
B Hatfield (Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2002/00013923
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW), there is to be no publication of the…

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 GAR v R

Details

AGLC: GAR v R [2021] NSWCCA 265
Case: [2021] NSWCCA 265
Decision Date: 10 November 2021

CaseChat Overview and Summary

The case involved an appellant who was convicted of robbery armed with an offensive weapon with wounding. The appellant sought leave to appeal against their sentence, including an extension of time to appeal, on the basis of fresh evidence. This evidence included the appellant's development of cirrhosis post-sentencing and the possibility that the appellant was infected with hepatitis B at the time of sentencing. The appellant also cited the effects of the COVID-19 pandemic on the appeal process as grounds for an extension of time. The court was required to decide whether the extension of time and leave to appeal should be granted based on the fresh evidence and the impact of the COVID-19 pandemic.

The court found that the evidence of the appellant's medical condition and the impact of the COVID-19 pandemic on the appeal process constituted fresh evidence. This evidence could potentially affect the appellant's sentence. Consequently, the court granted an extension of time and leave to appeal in respect of these grounds. However, the court determined that the appellant's appeal against the sentence was unlikely to succeed and dismissed the appeal.

The court's reasoning hinged on the weight and significance of the fresh evidence. While the evidence of the medical condition and the COVID-19 pandemic was deemed relevant, the court concluded that it was not sufficiently strong to warrant a reduction in the sentence. The court emphasised that the severity of the crime and the need for deterrence played a crucial role in its decision.

The final orders of the court were to grant leave to appeal in respect of the grounds based on fresh evidence, but to dismiss the appeal against the sentence. The court also noted that the appellant's sentence would remain as originally imposed, with no modifications.

Orders