Meagher JA at [1]; Wright J at [2]; Fagan J at [227]
Decision:
(1) The applicant is granted an extension of time in which to file a notice of application for leave to appeal in the matters with file numbers 2016/0019453, 2015/00101365 and 2016/000580335.
(2) The applicant has leave to appeal in each of the matters 2016/00194535, 2015/00101365 and 2016/00058033.
(3) The appeal in each of the matters 2016/00194535, 2015/00101365 and 2016/00058033 is dismissed.
Catchwords:
CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — manifest excess — reliance on cases said to be comparable — sentences not manifestly excessive — extension of time and leave granted — appeal dismissed
CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — misapplication of principle — whether sentencing judge erred in rejecting expert opinions of psychologist — whether sentencing judge failed to find special circumstances or give practical effect to such a finding — whether sentencing judge erred in placing too much weight on general deterrence — whether sentencing judge failed to request sentencing assessment report — whether excessive accumulation of sentences — no House v The King errors — extension of time and leave granted — appeal dismissed
CRIME — apprehended violence order — contravene apprehended violence order
CRIME — property offences — break and enter with intent to commit serious indictable offence — circumstances of aggravation
CRIME — violent offences — common assault — choking, suffocation or strangulation — cause grievous bodily harm with intent
[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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AGLC
Kuruppu v The Queen [2021] NSWCCA 261
Case
[2021] NSWCCA 261
Decision Date
CaseChat Overview and Summary
The case of Kuruppu v The Queen involved the appellant, Kuruppu, appealing against his sentence and seeking leave to appeal. The primary legal issues were whether the sentencing judge had erred in various respects, including by misapplying principles, rejecting expert opinions, failing to find special circumstances, overemphasising general deterrence, and not requesting a sentencing assessment report. Additionally, the court considered whether the sentences were excessive and whether the trial judge's errors amounted to the type described in House v The King. The appellant also sought an extension of time to appeal and leave to appeal, citing manifest excess and reliance on comparable cases.
The court examined the sentencing principles and whether the trial judge had correctly applied them. It found that the sentences were not manifestly excessive and that the trial judge had not misapplied the principles in a way that warranted an appeal. The court noted that the trial judge had considered expert opinions but rejected them based on valid reasons. The court also held that the sentencing judge had not failed to find special circumstances or give practical effect to such a finding. The judge's emphasis on general deterrence was considered appropriate given the circumstances. The court concluded that the trial judge's decision not to request a sentencing assessment report did not constitute a significant error. The appeal was dismissed, and the court granted an extension of time and leave to appeal.
The court granted leave to appeal and extended the time for the appellant to lodge the appeal, finding that the sentencing errors did not reach the level of those described in House v The King. The appeal was ultimately dismissed, as the court found no substantial grounds to interfere with the trial judge's sentencing decisions. The court's decision was based on a thorough examination of the sentencing principles and the specific circumstances of the case. The outcome reflects the court's cautious approach in allowing appeals against sentences, ensuring that the trial judge's discretion is respected unless there are clear and substantial errors.