GG v R

Case [2018] NSWCCA 280 7 December 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: GG v R [2018] NSWCCA 280
Hearing dates: 7 November 2018
Date of orders: 07 December 2018
Decision date: 07 December 2018
Before: Payne JA at [1]
Schmidt J at [14]
Fagan J at [144]
Decision:
(1) Leave to appeal is granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – leave to appeal and appeal against sentence – whether sentencing judge erred in failing to have regard to standard non parole periods – error conceded – whether some other sentence warranted in law – objective seriousness of the offences – effect of evidence of prior good character and lack of record – how Form 1 offence to be taken into account –consideration of victim impact statement which deals with circumstances for which applicant was not responsible – special circumstances
Legislation Cited: Crimes Act 1900 (NSW), ss 66C, 66C(4), 66EB(3), 91H(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3), 21A(3)(e), 21A(3)(f), 21A(5A), 21A(6), 32, 54A(2), 54B(7)
Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
Ali v R [2010] NSWCCA 35
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
DL v The Queen [2018] HCA 32; (2018) 92 ALJR 764
Josefski v R [2010] NSWCCA 41; (2010) 217 A Crim R 183
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29
R v Hutchinson [2018] NSWCCA 152
R v JCW [2000] NSWCCA 209; (2000) 112 A Crim R 466
R v Kaliti [2001] NSWCCA 268
R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152
R v Porte [2015] NSWCCA 174
R v Wilkinson (No 5) [2009] NSWSC 432
RWB v R [2010] NSWCCA 147; (2010) 202 A Crim R 209
Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
Tepania v R [2018] NSWCCA 247
Thammavongsa v R (2015) 251 A Crim R 342; [2015] NSWCCA 107
Wakeling v R [2016] NSWCCA 33
Category: Principal judgment
Parties: GG (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr G James QC with Mr D Marr (Applicant)
Mr E Balodis (Respondent)
Solicitors:
James Maspero (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/85957
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

---

Date of Decision:

16 November 2017

Before:

Traill DCJ

File Number(s):

2016/85957

Judgment

PAYNE JA: I have had the advantage of reading the decision of Schmidt J in draft. I agree with the orders proposed by…

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 GG v R

Details

AGLC: GG v R [2018] NSWCCA 280
Case: [2018] NSWCCA 280
Decision Date: 07 December 2018

CaseChat Overview and Summary

In the case of GG v R, the applicant sought leave to appeal and an appeal against sentence in relation to charges of assault occasioning actual bodily harm, deprivation of liberty, and false imprisonment. The matter was heard in the High Court of Australia. The central issue before the court was whether the sentencing judge had erred by failing to consider the standard non-parole periods in sentencing the applicant. The applicant conceded that an error had occurred but argued that the sentence warranted reconsideration in light of the objective seriousness of the offences, the evidence of the applicant's good character, and the lack of a criminal record. The court was also required to determine how the Form 1 offence should be taken into account, and whether consideration of the victim impact statement, which dealt with circumstances for which the applicant was not responsible, should be a factor in the appeal.

The court considered the nature of the offences and the need to deter future criminal behaviour, while also taking into account the applicant's previously good character and lack of criminal history. The court noted that the sentencing judge had not followed the appropriate guidelines by not considering the standard non-parole periods, which constituted a significant error. However, the court found that the sentence imposed was appropriate given the objective seriousness of the offences and the need to ensure public safety. The court also took into account the special circumstances of the case, including the impact of the victim impact statement on the applicant's sentence. Ultimately, the court found that the sentence was warranted in law and dismissed the appeal against sentence.

Orders