JB v The Queen - [2012] NSWCCA 196

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: JB v R [2012] NSWCCA 196
Hearing dates: 9 August 2012
Decision date: 12 September 2012
Before: McClellan CJ at CL at [1]
RA Hulme J at [4]
Schmidt J at [5]
Decision:
Leave to appeal be granted, but the appeal be dismissed.

Catchwords: CRIMINAL LAW - appeal - leave to appeal against sentence - whether error in having regard to the standard non-parole period applicable to adult offenders as a reference point in sentencing - error conceded - whether there was error in assessment of the objective seriousness of the offence - error not established - impact of the consideration of the standard non-parole period - s 6(3) of the Criminal Appeal Act 1912 - no lesser sentence warranted
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: AE v R [2010] NSWCCA 203
Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 93
KT v R [2008] NSWCCA 51; 182 A Crim R 571
Lawton v R [2012] NSWCCA 16
R v Carroll; Carroll v The Queen [2010] 77 NSWLR 45
R v Chisari [2006] NSWCCA 19
R v Mitchell; R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296
R v O'Neill [1979] 2 NSWLR 582
R v Voss [2003] NSWCCA 182
YS v R [2010] NSWCCA 98
Category: Principal judgment
Parties: JB (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr S Corish (Applicant)
Ms H Wilson (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/76871
Publication restriction: None
Decision under appeal

Date of Decision:

2011-11-09 00:00:00

Before:

Garling DCJ

File Number(s):

2011/76871

Judgment

McCLELLAN CJ at CL: I agree with Schmidt J.

This is yet another case where a young offender affected by alcohol initiates a violent and unprovoked attack on another person occasioning serious injuries. The frequency with which this Court sees offences of this type may indicate that there are inappropriately benign attitudes to violent behaviour in some parts of the community. It is a matter beyond the expertise of this Court but it is impossible not to ask the question whether the enthusiasm of many in the community for violence in some sports, cinema and electronic entertainment or a combination of these things may contribute to those attitudes. When those attitudes are held by young people whose inhibitions have been diminished by consuming excessive alcohol or drugs, very serious problems can arise. Great and irreparable damage can be inflicted on others. In some cases the violence results in the death of the victim.

There are limits to the action which a court may take to seek to confine these problems Punishing offenders may deter that person from similar behaviour, although that is not always effective. The courts have also emphasised the importance of general deterrence in relation to this type of offence: see R 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 JB v The Queen

Details

AGLC: JB v The Queen [2012] NSWCCA 196
Case: [2012] NSWCCA 196
Decision Date: 12 September 2012

CaseChat Overview and Summary

The matter of JB v The Queen was heard in the court, where JB appealed against a sentence imposed. The nature of the dispute was whether there was an error in the sentencing process, specifically in considering the standard non-parole period for adult offenders as a reference point. The error of having regard to this standard non-parole period was conceded. The key issue for the court was whether there was an error in the assessment of the objective seriousness of the offence.

The court analysed the sentencing process and concluded that while there was an error in considering the standard non-parole period, it did not result in an error in the assessment of the objective seriousness of the offence. The court found that the consideration of the standard non-parole period did not impact the overall assessment of the offence's seriousness. The court applied section 6(3) of the Criminal Appeal Act 1912 and determined that a lesser sentence was not warranted.

The court dismissed the appeal and confirmed the original sentence. The final orders were that the appeal be dismissed, and the sentence imposed by the lower court be upheld.

Orders