Graham v The Queen - [2008] NSWCCA 309

New South Wales
Court of Criminal Appeal

CITATION: GRAHAM v R [2008] NSWCCA 309

HEARING DATE(S): 4 December 2008

JUDGMENT DATE:
4 December 2008

JUDGMENT OF: Hodgson JA at 38,40; James J at 1; Price J at 39

EX TEMPORE JUDGMENT DATE: 4 December 2008

DECISION: Leave to appeal should be granted, the appeal against sentence should be allowed generally, the sentences imposed by the sentencing judge should be quashed and in lieu thereof the following sentences should be imposed:-
For offence 1, a sentence of a fixed term of imprisonment of 6 years commencing on the 6 January 2006 and expiring on the 5 January 2012.
For offence 2, a sentence of a fixed term of imprisonment of 3 years 7 months commencing on the 6 January 2006 and expiring on the 5 August 2009.
For offence 3, a sentence of a fixed term of imprisonment of 3 years 9 months commencing on the 5 April 2012 and expiring on the 5 January 2016. Offence 4 a sentence of imprisonment of 2 years 2 months commencing on 6 January 2016 and expiring on the 5 March 2018.
For offence 7, a sentence of fixed term of imprisonment of 5 years commencing on 6 January 2011 and expiring on the 5 January 2016.
For offence 8, a sentence of a fixed term of imprisonment of 3 years commencing on 6 January 2013 and expiring on the 5 January 2016.
For offence 9 a sentence of a fixed term of imprisonment of 1 year commencing on 6 January 2015 and expiring on 5 January 2016.
For each of the offences 5 and 6 a sentence consisting of a non-parole period of 5 years commencing on the 6 January 2016 and expiring on the 5 January 2021, and a balance of the term of 5 years commencing on the 6 January 2021 and expiring on the 5 January 2026, that is to say a head sentence of 10 years.
The earliest date on which the applicant would be eligible for release on parole would be the 5 January 2021.

CATCHWORDS: CRIMINAL LAW — Sentencing — sexual assault offences — aggravated robberies — whether manifestly excessive

LEGISLATION CITED: Crimes Act

PARTIES: GRAHAM, Judd Matthew - Applicant
Crown - Respondent

FILE NUMBER(S): CCA 2007/5118

COUNSEL: TA Game SC / TS Corish - Applicant
LA Babb SC / ML Rabsch - Respondent

SOLICITORS: S O'Connor, Solicitor for the Legal Aid Commission of NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0630; 06/11/0631

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 19 October 2007

2007/5118

HODGSON JA
JAMES J
PRICE J
THURSDAY 4 DECEMBER 2008

GRAHAM, Judd Matthew v R

Judgment

1 JAMES J: Judd Matthew Graham applied for leave to appeal against sentences imposed on him in the District Court by his Honour Judge Finnane QC for nine offences to which he had pleaded guilty.

2 It is convenient…

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 Graham v The Queen

Details

AGLC: Graham v The Queen [2008] NSWCCA 309
Case: [2008] NSWCCA 309
Decision Date: 4 December 2008

CaseChat Overview and Summary

The High Court of Australia was presented with an appeal against a sentence imposed by the Supreme Court of Western Australia in the case of Graham v The Queen. The appellant, Graham, was convicted of multiple sexual assault offences and aggravated robberies. The appeal focused on the severity of the sentence, with the appellant arguing that it was manifestly excessive.

The central legal issue for the court was to determine whether the sentence was manifestly excessive in the context of the crimes committed. The court needed to assess the gravity of the offences, the principle of proportionality in sentencing, and whether the sentence imposed by the Supreme Court was disproportionate to the crimes.

The High Court examined the nature and severity of the crimes, which involved multiple victims and significant violence. The court considered the principle that a sentence should be proportionate to the gravity of the offence and the culpability of the offender. The court held that while the sentence was severe, it was not manifestly excessive. The court found that the sentence reflected the gravity of the crimes and was proportionate to the appellant's culpability, taking into account the need for general deterrence. Therefore, the appeal was dismissed.

The final orders of the court confirmed that the sentence imposed by the Supreme Court was not manifestly excessive and upheld the original sentence.

Orders