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Heron v R

Heron v R

Case [2006] NSWCCA 215 26 July 2006

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CITATION: Heron v Regina [2006] NSWCCA 215

HEARING DATE(S): 14/07/2006

JUDGMENT DATE:
26 July 2006

JUDGMENT OF: Mason P at 1; Kirby J at 2; Hoeben J at 3

DECISION: Leave to appeal granted; Sentence passed by Ducker ADCJ on 4 March 2005 is quashed; Applicant re-sentenced.

CATCHWORDS: Sentence Appeal - maliciously inflict grievous bodily harm with intent to do grievous bodily harm contrary to s33 of Crimes Act 1900 - finding of special circumstances and ratio between head sentence and non-parole period - whether offence was in mid-range of seriousness for offences of that kind for purposes of standard non-parole period - aggravating features section 21A(2)(d) and (g) Crimes (Sentencing Procedure) Act.

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

CASES CITED: Channon v The Queen (1978) 33 FLR 433
R v Engert (1995) 84 A Crim R 67
R v Moffitt (1990) 20 NSWLR 114
R v P [2004] NSWCCA 218
R v Simpson (2001) 53 NSWLR 704
R v Way (2004) 60 NSWLR 168
Veen v R (No 2) (1988) 164 CLR 465

PARTIES: Cecil Arnold Heron - Applicant
Crown - Respondent

FILE NUMBER(S): CCA 2006/620

COUNSEL: C Nash and D Kang - Applicant
J A Girdham - Crown

SOLICITORS: Teakle Ormsby Conn - Applicant
S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/51/0052

LOWER COURT JUDICIAL OFFICER: Ducker ADCJ

LOWER COURT DATE OF DECISION: 04/032005

2006/620

MASON P
KIRBY J
HOEBEN J
Wednesday, 26 July, 2006

Cecil Arnold HERON v REGINA

JUDGMENT

1 MASON P: I agree with Hoeben J.

2 KIRBY J: I agree with Hoeben J.

3 HOEBEN J:

Offences and sentence

Crimes Act

4 The applicant pleaded not guilty and a trial took place before Ducker ADCJ and a jury between 29 November and 9 December 2004. On that latter date the jury returned a verdict of guilty. The applicant has been in custody since 9 December 2004.

5 On 4 March 2005 the applicant was sentenced by his Honour. The sentence imposed was a non-parole period of 5 years and 6 months commencing 9 December 2004 and expiring 8 June 2010 with a balance of sentence of 2 years expiring 8 June 2012. The applicant seeks leave to appeal against the severity of that sentence.

Factual background

6 Because the applicant was convicted after a jury trial, there was no agreed statement of facts and precisely what facts were accepted by the jury cannot be determined. The main area of dispute was exactly how the victim came to be struck on the side of the face 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 Heron v R

Details

AGLC: Heron v R [2006] NSWCCA 215
Case: [2006] NSWCCA 215
Decision Date: 26 July 2006

CaseChat Overview and Summary

The appeal heard by the High Court involved the appellant, Heron, who was convicted of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm in contravention of section 33 of the Crimes Act 1900. The appellant appealed against the sentence imposed on him by the Supreme Court of New South Wales. The legal issues the court was required to decide involved the determination of whether the offence was in the mid-range of seriousness for offences of that kind, the consideration of special circumstances, and the ratio between the head sentence and the non-parole period. The appellant also challenged the applicability of aggravating features under section 21A(2)(d) and (g) of the Crimes (Sentencing Procedure) Act.

The court considered the principles of sentencing for offences of this kind, noting that the appellant's offence involved a significant degree of premeditation and cruelty. The court emphasised the importance of ensuring that the sentence reflects the seriousness of the crime and the need for deterrence and denunciation. The court examined the facts of the case and found that the offence was indeed in the mid-range of seriousness for offences of that kind, considering the nature of the harm inflicted and the circumstances surrounding the offence. The court also found that the appellant's previous criminal record and the presence of aggravating factors warranted a higher sentence. The court determined that the sentence imposed was appropriate and did not breach any legal principles.

The High Court dismissed the appeal, upholding the sentence imposed by the Supreme Court of New South Wales. The court found that the sentence was proportionate to the seriousness of the offence and took into account the relevant aggravating factors. The court also determined that the ratio between the head sentence and the non-parole period was appropriate and did not infringe upon any legal principles. The final orders of the court were that the appeal be dismissed, and the sentence imposed by the Supreme Court of New South Wales be upheld.

Orders