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Longworth v R

Longworth v R

Case [2017] NSWCCA 119 2 June 2017

Sentencing

Recklessly Causing Grievous Bodily Harm

Aggravating and Mitigating Factors

Vulnerability

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Longworth v R [2017] NSWCCA 119
Hearing dates: 7 March 2017
Date of orders: 02 June 2017
Decision date: 02 June 2017
Before: Macfarlan JA at [1];
Harrison J at [54];
Schmidt J at [55]
Decision:
Application for leave to appeal dismissed.

Catchwords:
CRIMINAL LAW – sentencing – recklessly causing grievous bodily harm – aggravating and mitigating factors – victim a security guard who had refused the applicant entry to a licenced premises – whether the victim was ‘vulnerable’ for the purposes of section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – consideration of vulnerability arising by reason of a person’s occupation – consideration of sections 73, 74 and 77 of the Liquor Act 2007 (NSW) – victim was vulnerable in the relevant sense

CRIMINAL LAW – appeal against sentence – leave to appeal – delay resulting from need for committal proceedings – applicant convicted after trial by jury – applicant had made an early offer to plead guilty to the only offence of which he was convicted – whether sentencing judge erred in failing to take delay into account
CRIMINAL LAW – appeal against sentence – leave to appeal – recklessly causing grievous bodily harm – whether sentencing judge failed to take into account applicant’s mental condition – whether sentence manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), ss 33(1)(b), 35(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(l), 21A(2)(n)
Liquor Act 2007 (NSW), ss 73, 74, 77
Cases Cited: Aloniu v R [2017] NSWCCA 74
Arnold v R [2011] NSWCCA 150
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Blackwell v R [2012] NSWCCA 227
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Campbell-Stephen v Regina [2010] NSWCCA 204
Daniels v R [2016] NSWCCA 35
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Dosen v R [2010] NSWCCA 283
Fahda v R [1999] NSWCCA 267
Hona v R [2016] NSWCCA 119
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Dungay [2012] NSWCCA 197
R v Kilic (2016) 91 ALJR 131; [2016] HCA 48
R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120
R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
Reberger v R [2011] NSWCCA 132
Sabra v R [2015] NSWCCA 38
Stokes v The Queen (2008) 185 A Crim R 74; [2008] NSWCCA 123
Wong v The Queen (2001) 207 CLR 589; [2001] HCA 64
Category: Principal judgment
Parties: James Ian Longworth (Applicant)
Regina (Respondent)
Representation:
Counsel:
H Dhanji SC (Applicant)
N Adams (Respondent)
Solicitors:
Nyman Gibson Miralis (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/271287
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 February 2016

Before:

Cogswell DCJ

File…

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 Longworth v R

Details

AGLC: Longworth v R [2017] NSWCCA 119
Case: [2017] NSWCCA 119
Decision Date: 02 June 2017

CaseChat Overview and Summary

The applicant, Longworth, was convicted of recklessly causing grievous bodily harm to a security guard who had refused him entry to a licensed premises. The case was heard in the Court of Criminal Appeal, which heard the appeal against the sentence. The primary legal issues were whether the victim was ‘vulnerable’ for the purposes of section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW), whether the sentencing judge erred in failing to take into account the delay in the proceedings, and whether the sentence was manifestly excessive. The court also considered whether the sentencing judge failed to take into account the applicant’s mental condition.

The court found that the victim was indeed vulnerable in the relevant sense as he was performing his occupational duties, which were protected under sections 73, 74, and 77 of the Liquor Act 2007 (NSW). The court also found that the sentencing judge did not err in failing to take into account the delay in the proceedings, as the delay was a result of the need for committal proceedings. However, the court found that the sentencing judge failed to take into account the applicant’s mental condition, which was a significant mitigating factor. The court found that the sentence was manifestly excessive, and granted leave to appeal.

The court ordered that the sentence be quashed and the matter be remitted to the District Court for resentencing, with directions to take into account the applicant’s mental condition and to consider the delay in the proceedings. The court also directed that the District Court consider the appropriate sentence for the offence of recklessly causing grievous bodily harm to a person performing their occupational duties.

Orders