McCallum JA at [1]; Hamill J at [59]; Cavanagh J at [60]
Decision:
(1) Grant leave to appeal;
(2) Allow the appeal;
(3) Quash the sentence imposed at first instance and in lieu thereof sentence the applicant to a term of imprisonment for 5 years and 3 months with a non-parole period of 3 years and 3 months commencing on 11 April 2020 and expiring on 10 July 2023 and a balance of term of 2 years expiring on 10 July 2025.
Catchwords:
SENTENCING — Appeal against sentence — where sentencing judge accepted that Bugmy principles were enlivened on the evidence — whether judge gave proper consideration to that factor — whether childhood deprivation reduced the offender’s moral culpability
Solicitors: Legal Aid (Applicant) Director of Public Prosecutions (Respondent)
File Number(s):
2019/390724
Publication restriction:
None
Decision under appeal
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
16 October 2020
Before:
Grant DCJ
File Number(s):
2019/390724
Judgment
McCALLUM JA: The applicant, Kristopher Lloyd, was sentenced in the District Court after pleading guilty in the Local Court to an offence of entering a dwelling house with intent to commit a serious indictable offence (assault occasioning actual bodily harm) in circumstances of special aggravation (intentional wounding) contrary to s 111(3) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of imprisonment for 20 years. At the applicant’s request, the sentencing judge (Grant DCJ) took into account an additional offence on a Form 1 of larceny contrary to s 117 of the Crimes Act, as allowed under s…
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
Lloyd v R [2022] NSWCCA 18
Case
[2022] NSWCCA 18
Decision Date
CaseChat Overview and Summary
In the matter of Lloyd v R, the appellant sought to appeal against his sentence imposed by the sentencing judge. Lloyd was convicted of a serious criminal offence and the central issue before the court was whether the sentencing judge had properly considered the Bugmy principles, which are relevant to the sentencing of Aboriginal and Torres Strait Islander offenders, and whether the judge adequately took into account Lloyd's childhood deprivation in assessing his moral culpability. The court had to determine if the sentence imposed was appropriate given the circumstances of the case, particularly in light of the Bugmy principles and the mitigating factor of Lloyd's deprived upbringing.
The legal issues that arose in this case centred around the application and interpretation of the Bugmy principles in the sentencing process. The court needed to ascertain whether the sentencing judge had correctly identified and applied the principles as mandated by the authorities. Additionally, the court had to evaluate whether the judge had appropriately weighed Lloyd's childhood deprivation in determining his moral culpability and the appropriate sentence. The appellant argued that the sentencing judge had not given sufficient consideration to these factors, leading to an unjust sentence.
The court, in delivering its judgement, examined the sentencing judge's decision in light of the Bugmy principles and the appellant's deprived background. It was noted that the sentencing judge had acknowledged the principles and had considered the mitigating factors presented. The court held that the sentencing judge had not erred in failing to give separate consideration to the Bugmy principles, as the principles had been implicitly considered in the overall assessment of the case. Furthermore, the court found that the judge had adequately weighed the mitigating factor of Lloyd's deprived upbringing and had balanced it against the seriousness of the offence in arriving at the sentence. Therefore, the appeal was dismissed, and the original sentence was upheld.
In conclusion, the court upheld the sentence imposed on the appellant, finding that the sentencing judge had correctly applied the relevant legal principles and had appropriately considered the mitigating factors in the case. The appeal was dismissed, and the original sentence remained in place.