Gillon v Regina - [2009] NSWCCA 277

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Gillon v Regina [2009] NSWCCA 277

FILE NUMBER(S):
2008/12564

HEARING DATE(S):
11 November 2009

JUDGMENT DATE:
26 November 2009

PARTIES:
Curtis GILLON (Applicant)
Regina (Respondent)

JUDGMENT OF:
McClellan CJatCL Howie J Hislop J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/12564

LOWER COURT JUDICIAL OFFICER:
King DCJ

LOWER COURT DATE OF DECISION:
14 November 2008

COUNSEL:
T Gartelmann (Applicant)
M Grogan (Respondent)

SOLICITORS:
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW - sentence appeal - recklessly causing grievous bodily harm - appeal dismissed - no issue of principle

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY:
Principal judgment

CASES CITED:
Leslie v Regina [2009] NSWCCA 203
R v Drew [2000] NSWCCA 384
R v Mills (2005) 154 A Crim R 40
R v Newman [2004] NSWCCA 102
Regina v Buddle [2005] NSWCCA 82
Regina v Fidow [2004] NSWCCA 172
Regina v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; 126 A Crim R 525

TEXTS CITED:

DECISION:
(1) Leave to appeal granted;
(2) Appeal dismissed.

JUDGMENT:

- 11 -

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/12564
McCLELLAN CJ at CL
HOWIE J
HISLOP J
26 November 2009

Curtis GILLON v Regina

Judgment

McCLELLAN CJ at CL: I agree with Hislop J.
HOWIE J: I agree with Hislop J.
HISLOP J:
Introduction
On 25 July 2008, the applicant pleaded guilty to recklessly causing grievous bodily harm contrary to the Crimes Act 1900, s 35(2). The maximum penalty applicable for the offence is 10 years imprisonment. A standard non-parole period of 4 years imprisonment is applicable.
On 14 November 2008, the applicant was sentenced in the District Court to a non-parole period of 3 years imprisonment to commence on 6 February 2008 and expire on 5 February 2011, with a balance of term of 1 year to commence on 6 February 2011 and expire on 5 February 2012.
His Honour set out the agreed facts in his remarks on sentence as follows:
“On the evening of Tuesday 5 February 2008 the victim, Barry Hines, was drinking with friends at 1 Yanda Street, Bourke. This was the home of Leonie Ellwood who was the cousin of [the applicant] and the de facto partner of the victim. The victim and Ellwood have been in a de facto relationship for approximately three years. Present at the home were the victim, [the applicant], Leonie Ellwood, Lola Hunter and her sister, Vanessa Hunter. The group who were all well known to each other began consuming alcohol earlier in the day and by the evening all persons with the exception of Lola Hunter were heavily intoxicated. Around 10.15 pm the victim was seated at a table in the dining room of the premises with Leonie Ellwood, who was having some dinner. At about this time the victim struck Leonie Ellwood with a backhanded swing, knocking her from her chair to 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 Gillon v Regina

Details

AGLC: Gillon v Regina [2009] NSWCCA 277
Case: [2009] NSWCCA 277
Decision Date: 26 November 2009

CaseChat Overview and Summary

The appellant in the case of Gillon v Regina appealed against the sentence imposed by the lower court for recklessly causing grievous bodily harm. The appeal was heard and determined by the higher court, which had to decide whether the sentence was appropriate given the nature of the offence and whether there was any error in the application of the law by the sentencing judge. The appellant argued that the sentence was excessive and that the sentencing judge had erred in determining the objective seriousness of the case. The higher court, however, found that there was no material error in the sentencing judge's determination of the objective seriousness of the case. The court also concluded that the sentence imposed was appropriate and that no other, less severe, sentence was warranted in law.

The higher court considered the legal principles applicable to appeals against sentence, including the criteria for interfering with a sentence imposed by the lower court. The court noted that it would only interfere with the sentence if it was shown that the sentencing judge was in error and if it formed a positive opinion that some other, less severe, sentence was warranted in law and should have been passed. In this case, the higher court found that the appellant had not established any material error in the sentencing judge's determination of the objective seriousness of the case. The court also found that the sentence imposed was appropriate and that no other, less severe, sentence was warranted in law.

Based on the above findings, the higher court dismissed the appeal and granted leave to appeal. The court considered that, while it would grant leave to appeal, it would dismiss the appeal as there was no material error in the sentencing judge's determination of the objective seriousness of the case, and the sentence imposed was appropriate. The higher court's decision was based on a careful consideration of the legal principles applicable to appeals against sentence and a detailed analysis of the facts of the case. The appellant's appeal against the sentence was, therefore, dismissed.

The higher court made the following orders: (1) leave to appeal was granted; and (2) the appeal was dismissed. The court's decision in this case provides guidance on the legal principles applicable to appeals against sentence and the criteria for interfering with a sentence imposed by the lower court. The decision also highlights the importance of carefully considering the objective seriousness of the case and the appropriate sentence to be imposed in each individual case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CLELLAN CJ

In my opinion, his Honour did not err in his determination of the objective seriousness of the case. Conclusion The Court’s powers in respect of an appeal on sentence are prescribed by the Criminal Appeal Act 1912, s 6(3). The Court will interfere with the sentence imposed in the court below only if it be shown that the sentencing judge was in error and then only if it forms a positive opinion that some other, less severe, sentence is warranted in law and should have been passed: Regina v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; 126 A Crim R 525 at [79]. In my opinion, material error has not been established. Nor has it been established that some other sentence, less severe, is warranted in law and should have been passed. Accordingly, whilst I would grant leave to appeal, I would dismiss the appeal.Orders I propose the following orders:(1) Leave to appeal granted;(2) Appeal dismissed.**********

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

Full text does not contain this section.