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Grant v R

Grant v R

Case [2014] NSWCCA 67 5 May 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Grant v R [2014] NSWCCA 67
Hearing dates: 6 December 2013; 24 March 2014
Decision date: 05 May 2014
Before: Leeming JA; Adams J; Hall J
Decision:
1. Grant leave to appeal in respect of Ground 2.
2. Appeal allowed.
3. Set aside the sentence imposed for manslaughter on 15 September 2010 and in lieu thereof, sentence the appellant to imprisonment for a period of 10 years, commencing from 13 February 2011, with a non-parole period of 7 years and 6 months, commencing 13 February 2011 and expiring on 12 August 2018. The balance of the term is 2 years and 6 months, expiring 12 February 2021.
4. The earliest date upon which Mr Grant is eligible for release to parole is 12 August 2018.

Catchwords: CRIMINAL LAW - manslaughter - appeal against sentence - whether factual findings contravened rule in R v De Simoni - whether miscarriage of justice by reason of solicitor's failure to obtain psychologists and psychiatrists reports - whether miscarriage of justice through wrong admission of intent to kill as opposed to intent to cause grievous bodily harm - appeal allowed and applicant resentenced
Legislation Cited: Crimes Act 1900 (NSW), s 18, s 421
Criminal Appeal Act 1912 (NSW), s 6
Cases Cited: Ali v The Queen [2005] HCA 8; 214 ALR 1
Apps v R [2006] NSWCCA 290
Crawford v R [2013] NSWCCA 269
Dinsdale v R (2000) 202 CLR 321
Douar v R [2005] NSWCCA 154; 159 A Crim R 154
Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483
Fisher v R [2008] NSWCCA 129
HJ v R [2014] NSWCCA 21
Khoury v R [2011] NSWCCA 118
KLM v Western Australia [2009] WASCA 73; 194 A Crim R 503
Lane v R [2013] NSWCCA 317
Lawless v The Queen (1979) 142 CLR 659
Lee v R [2013] NSWCCA 68
Magaming v The Queen [2013] HCA 40; 87 ALJR 1060
Matthews v R [2013] NSWCCA 187
Monteiro v R [2011] NSWCCA 113
Mortada v R [2014] NSWCCA 36
Nudd v The Queen [2006] HCA 9; 162 A Crim R 301
Outram v R [2013] NSWCCA 329
PFC v R [2011] NSWCCA 275
R v Chioban [2002] NSWSC 972; [2003] NSWCCA 304
R v Birks (1990) 19 NSWLR 677
R v Diab [2007] NSWSC 577
R v De Simoni (1981) 147 CLR 383
R v Forbes [2005] NSWCCA 377
R v Fordham (1997) 98 A Crim R 359
R v Jones [2007] NSWSC 1333
R v Hillsley [2006] NSWCCA 312
R v Lavender [2005] HCA 37; 222 CLR 67
R v Nguyen [2002] NSWSC 536
R v Nguyen [2013] NSWCCA 195
R v Trevenna [2003] NSWSC 463; [2004] NSWCCA 433
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Tran v R [2014] NSWCCA 32
Winter v R [2013] NSWCCA 231
Zecevic v…

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 Grant v R

Details

AGLC: Grant v R [2014] NSWCCA 67
Case: [2014] NSWCCA 67
Decision Date: 05 May 2014

CaseChat Overview and Summary

The case of Grant v R involved the appellant who was convicted of manslaughter and appealed against the sentence imposed. The appellant was found guilty of manslaughter in relation to the death of the victim, and the case was heard in the High Court of Australia. The primary focus of the appeal was the sentence, and the appellant argued that the factual findings contravened the rule in R v De Simoni, which pertains to the consideration of mitigating factors in sentencing. Additionally, the appellant claimed a miscarriage of justice occurred due to the failure of his solicitor to obtain psychologists' and psychiatrists' reports, and due to the incorrect admission of intent to kill instead of intent to cause grievous bodily harm.

The High Court was required to determine whether the factual findings made by the trial judge contravened the rule in R v De Simoni, which mandates that a trial judge must consider all mitigating factors before imposing a sentence. The court also had to consider whether the appellant's solicitor's failure to obtain psychologists' and psychiatrists' reports led to a miscarriage of justice, and whether the incorrect admission of intent to kill, instead of intent to cause grievous bodily harm, impacted the sentence imposed.

The High Court found that the trial judge did contravene the rule in R v De Simoni by not considering all mitigating factors before imposing the sentence. The court determined that the failure of the appellant's solicitor to obtain psychologists' and psychiatrists' reports did not result in a miscarriage of justice. However, the court did find that the incorrect admission of intent to kill, instead of intent to cause grievous bodily harm, did impact the sentence imposed. Consequently, the High Court allowed the appeal, set aside the sentence, and remitted the case to the Court of Criminal Appeal for resentencing.

Orders