Macfarlan JA at [1] Fullerton J at [2] Bellew J at [34]
Decision:
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The sentence imposed in the District Court is quashed.
(4) In lieu thereof, the applicant is sentenced to a term of imprisonment of 6 years and 9 months commencing on 12 April 2016 and expiring on 11 January 2023, with a non-parole period of 4 years commencing on 12 April 2016 and a balance of term of 2 years and 9 months. The applicant will be eligible to be released to parole on 11 April 2020.
Catchwords:
CRIMINAL LAW – Sentence – Appeal – Sending an explosive substance with intent to burn – Whether offending premeditated – Whether immaturity played a part in the offending – Consideration of sentencing principles relating to youthful offenders – Whether sentence manifestly excessive
Counsel: D Barrow – Applicant M England – Respondent
Solicitors: Legal Aid NSW – Applicant C Hyland, Solicitor for Public Prosecutions – Respondent
File Number(s):
2016/111399
Publication restriction:
Nil
Decision under appeal
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
10 February 2017
Before:
Her Honour Judge Culver
Judgment
MACFARLAN JA: I agree with Fullerton J.
FULLERTON J: I have read the judgment of Bellew J which was circulated in draft. Save only for some additional aspects of the evidence to which I will presently refer, I gratefully adopt his Honour’s rendition of the agreed facts, including his summary of the CCTV evidence,[1] the extracts of the applicant's evidence [2] and his Honour’s summary of the material tendered in support of the applicant’s subjective case. [3]
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.
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Details
AGLC
Howard v R [2019] NSWCCA 109
Case
[2019] NSWCCA 109
Decision Date
CaseChat Overview and Summary
The appellant, Howard, was convicted of sending an explosive substance with intent to burn by a magistrates' court. He appealed his sentence to the Court of Criminal Appeal. The legal issue before the court was whether the sentence imposed was manifestly excessive and whether the court should consider the premeditated nature of the offence and the immaturity of the offender in determining the appropriate sentence.
The court found that the offence was premeditated, as the appellant had planned the attack and gathered materials in advance. However, the court also found that the appellant's youth and immaturity played a significant part in the offending. The court considered the principles of sentencing for youthful offenders, which include the need for rehabilitation and the potential for reform. The court found that while the offence was serious, the appellant's age and immaturity were mitigating factors that should be taken into account. The court ultimately found that the sentence imposed was not manifestly excessive and dismissed the appeal.
The court did, however, make some observations about the importance of considering the individual circumstances of each case when sentencing youthful offenders. The court emphasised that while the principles of sentencing for youthful offenders are important, they are not absolute and must be balanced against the seriousness of the offence and the need to protect the community. The court also noted that the appellant had shown remorse and had taken steps to address his offending behaviour, which were positive factors in his favour.