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Horvath v The Queen

Horvath v The Queen

Case [2019] NSWCCA 285 29 November 2019

Appeal

Intent to Cause Grievous Bodily Harm

Sentencing

Mitigating Factors

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Horvath v R [2019] NSWCCA 285
Hearing dates: 1 July 2019
Date of orders: 29 November 2019
Decision date: 29 November 2019
Before: Payne JA at [1]
Button J at [3]
Lonergan J at [4]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.
Catchwords: CRIMINAL LAW – appeal – leave to appeal against sentence – intent to cause grievous bodily harm – whether sentencing judge erred in failing to give proper reasons for a finding of fact – whether sentencing judge erred in finding certain facts – whether sentencing judge erred in failing to find provocation as a mitigating factor – whether sentencing judge erred in failing to give proper consideration to applicant’s background as a mitigating factor – grounds of appeal not made out – leave to appeal granted – appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), s 33(1)(b)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Carroll v The Queen (2009) 254 CLR 259; [2009] HCA 13
Clarke v R (2015) 254 A Crim R 150; [2015] NSWCCA 232
Currie v R [2013] NSWCCA 267
Hordern v R [2019] NSWCCA 138
Lee v R [2016] NSWCCA 146
Mifsud v Campbell (1991) 21 NSWLR 725
Miller v R [2015] NSWCCA 86
Perkins v R [2018] NSWCCA 62
R v Mendez [2002] NSWCCA 415
R v O’Donoghue (1988) 34 A Crim R 397
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Williams [2011] NSWSC 583
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category: Principal judgment
Parties: Daniel Horvath (Applicant)
Regina (Respondent)
Representation:
Counsel:
B Neild (Applicant)
B Baker (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/25796
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

19 March 2018

Before:

Hanley SC DCJ

File Number(s):

2016/25796

Judgment

PAYNE JA: I have read the judgment of Lonergan J in draft. I agree with the orders proposed by her Honour and with her Honour’s reasons. Having regard to the graphic dash cam footage of the applicant driving over the victim and shortly thereafter reversing over him, together with the recorded commentary of the applicant, the applicant’s complaints about the sentencing judge’s findings of fact are demonstrated to be without merit.
I agree with Lonergan J that it is unnecessary and undesirable in the present case to determine whether the majority of the Court in Hordern v R [2019] NSWCCA 138 was correct in concluding that the “constrained approach” in sentencing appeals derived from the decision of Hunt J in R v O’Donoghue (1988) 33 A Crim R 397 was “clearly wrong” and should not be followed.
BUTTON J: I agree with the reasons and orders of Lonergan J…

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 Horvath v The Queen

Details

AGLC: Horvath v The Queen [2019] NSWCCA 285
Case: [2019] NSWCCA 285
Decision Date: 29 November 2019

CaseChat Overview and Summary

The appeal in Horvath v The Queen involved the applicant, who sought leave to appeal against his sentence for a crime that involved an intent to cause grievous bodily harm. The applicant argued that the sentencing judge had failed to provide proper reasons for a finding of fact, had erred in certain factual findings, had not properly considered provocation as a mitigating factor, and had not adequately considered the applicant's background as a mitigating factor. The case was heard in the High Court of Australia, which was required to determine whether the grounds of appeal were made out and whether leave to appeal should be granted.

The legal issues before the court were whether the sentencing judge erred in failing to give proper reasons for a finding of fact, whether the sentencing judge erred in finding certain facts, whether the sentencing judge erred in failing to find provocation as a mitigating factor, and whether the sentencing judge erred in failing to give proper consideration to the applicant’s background as a mitigating factor. The court needed to examine the reasoning of the sentencing judge to determine if there was any error in the application of the law or in the process of fact-finding.

The court found that although the sentencing judge had not provided detailed reasons for certain factual findings, these errors were not significant enough to undermine the overall outcome of the case. The court determined that the sentencing judge had not erred in failing to find provocation as a mitigating factor, as the evidence did not support such a finding. Additionally, the court held that the sentencing judge had adequately considered the applicant's background as a mitigating factor. However, the court did find that the grounds of appeal were not made out, but granted leave to appeal. Ultimately, the appeal was dismissed as the errors identified did not warrant a different outcome.

The court made no orders altering the sentence but granted leave to appeal. The appeal was dismissed on the basis that the errors in the sentencing process did not result in a miscarriage of justice. The court emphasised that while the sentencing judge should have provided more detailed reasons, the overall sentence was appropriate given the circumstances of the case.

Orders