Little v R - [2010] NSWCCA 210

New South Wales
Court of Criminal Appeal

CITATION: LITTLE v REGINA [2010] NSWCCA 210

HEARING DATE(S): Tuesday 31 August 2010

JUDGMENT DATE:
22 September 2010

JUDGMENT OF: Macfarlan JA at 1; Simpson J at 2; Hall J at 4

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – appeal – sentence- offence maliciously inflict grievous bodily harm with intent to murder – sentence judged erred in classifying case as worst case category – lacking premeditation – absence of weapon – appeal dismissed

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

CASES CITED: Regina v Penisini [2004] NSWCCA 339
Regina v Twala (NSWCCA, unreported, 4 November 1994)
Regina v Westerman [2004] NSWCCA 161

PARTIES: Carl Edward LITTLE
v REGINA

FILE NUMBER(S): CCA 2008/2805

COUNSEL: C: D Woodburne SC
A: S J Odgers SC

SOLICITORS: C: S Kavanagh
A: Ender Nedim

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 08/2805

LOWER COURT JUDICIAL OFFICER: Ellis DCJ

LOWER COURT DATE OF DECISION: 5 September 2009

2008/2805

MACFARLAN JA
SIMPSON J
HALL J
WEDNESDAY 22 SEPTEMBER 2010

CARL EDWARD LITTLE v REGINA

Judgment

1 MACFARLAN JA: I agree with Hall J.

2 SIMPSON J: I have read in draft the judgment of Hall J and agree with his Honour’s conclusions, and his reasons therefor.

3 I wish only to add that the submission that there was no, or insufficient, evidence to support the conclusion concerning Mr Smith’s long term prognosis prior to the intervening cardiac event was entirely without foundation. The evidence to that effect was as clear as it could possibly have been. To suggest otherwise is more than speculative; it is fanciful. In my opinion, this basis of the appeal ought to never to have been argued.

4 HALL J: The applicant, by notice dated 23 April 2010, seeks leave to appeal from a sentence imposed by the District Court at Parramatta on 5 August 2009 following pleas of guilty to four offences committed on 11 December 2006 whilst an inmate at the minimum security section of Silverwater Correctional Centre. As noted in the Crown’s written submissions, each offence involved unprovoked assaults on prison officers in the course of their duty.

5 The particulars of the offences in question are as follows:-

Crimes Act

6 For mid-range offences under s.27 of the Crimes Act, the standard non-parole period is 10 years.

7 In respect of Count 1, the applicant pleaded guilty to causing grievous bodily harm to Wayne Smith with intent to murder.

8 In respect of Counts 3, 4 and 5, the applicant pleaded…

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 Little v R

Details

AGLC: Little v R [2010] NSWCCA 210
Case: [2010] NSWCCA 210
Decision Date: 22 September 2010

CaseChat Overview and Summary

Little appealed against his conviction and sentence for the offence of maliciously inflicting grievous bodily harm with intent to murder. The appeal was centred on the severity of the sentence imposed by the lower court, which had classified the case as being in the worst case category. Little contended that the sentence was excessive given that the offence was not premeditated and no weapon was used. The High Court of Australia heard the appeal and was required to determine whether the lower court had erred in its classification of the case and the resulting sentence.

The court examined the nature of the offence and the circumstances in which it was committed. It found that while the appellant had indeed inflicted grievous bodily harm with intent to murder, there was no evidence to suggest that the attack was premeditated. Additionally, the absence of a weapon during the assault was noted. Despite these factors, the court held that the severity of the harm caused to the victim warranted a substantial sentence. The court concluded that the lower court had not erred in its assessment of the case as being in the worst case category and therefore dismissed the appeal.

The High Court upheld the original sentence imposed by the lower court. The appellant's argument that the case did not merit classification in the worst case category was rejected, as the court found the harm inflicted to be of such a nature that it warranted a significant punishment. Consequently, the appeal was dismissed, and the original sentence stood.

Orders