Payne JA at [1]; R A Hulme J at [2]; Garling J at [99]
Decision:
1. Leave to appeal against sentence granted. 2. Appeal dismissed.
Catchwords:
CRIME – sentence appeal – two offences of wounding with intent to cause grievous bodily harm – liable under joint criminal enterprise principles – affray on Form 1 – whether sentence manifestly excessive – youth – asserted errors questions of weight – no indication too much weight given to general and personal deterrence – application of s 21A(2)(ea) Crimes (Sentencing Procedure) Act 1999 when offender a juvenile – statistics and comparative cases do not demonstrate error – sentences not unreasonable or plainly unjust
CRIME – parity – applicant and two co-offenders brothers – asserted insufficient disparity – sentencing judge specifically addressed parity – differences in age and roles in offending – applicant’s overall sentence 60% and 48% of co-offenders’ sentences – obvious and marked distinction made between co-offenders – discretionary assessment – differentiation open
Barry Lloyd (a pseudonym) (Applicant) Regina (Respondent)
Representation:
Counsel: Ms R Burgess (Applicant) Mr F Veltro (Crown)
Solicitors: Legal Aid NSW Solicitor for Public Prosecutions
File Number(s):
2014/296726
Decision under appeal
Court or tribunal:
District Court
Date of Decision:
14 October 2016
Before:
Culver DCJ
Judgment
PAYNE JA: I agree with R A Hulme J.
R A HULME J: Her Honour Judge Culver sentenced three brothers in the District Court at Parramatta on 14 October 2016 who had each pleaded guilty to two offences of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900
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 [2017] NSWCCA 303
Case
[2017] NSWCCA 303
Decision Date
CaseChat Overview and Summary
Lloyd appealed his sentence for two offences of wounding with intent to cause grievous bodily harm, which occurred during an affray. Lloyd argued that his sentence was manifestly excessive and that the sentencing judge did not properly consider the principles of parity between co-offenders. The appeal was heard in the NSW Court of Criminal Appeal.
The court examined whether Lloyd's sentence was manifestly excessive and if there was a parity issue between Lloyd and his co-offenders, who were his brothers. The court noted that Lloyd was liable under joint criminal enterprise principles and was sentenced as a juvenile, which involved the application of section 21A(2)(ea) of the Crimes (Sentencing Procedure) Act 1999. The court also considered whether the sentencing judge had given sufficient weight to the principles of general and personal deterrence.
The court held that Lloyd's sentence was not manifestly excessive as the sentencing judge had appropriately balanced the principles of general and personal deterrence. The court found that the statistics and comparative cases did not demonstrate any error in the sentencing judge's approach. In relation to parity, the court determined that the sentencing judge had specifically addressed the issue and had made an obvious and marked distinction between Lloyd and his co-offenders, taking into account their differing ages and roles in the offending. The differences in their sentences were justified, and Lloyd's sentence was 60% and 48% of his co-offenders' sentences, indicating a discretionary assessment that allowed for differentiation.
The appeal was dismissed, and the original sentences were upheld.