Lynch v The Queen - [2007] NSWCCA 268

New South Wales
Court of Criminal Appeal

CITATION: LYNCH v R [2007] NSWCCA 268

HEARING DATE(S): 8 August 2007

JUDGMENT DATE:
4 September 2007

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 21; Harrison J at 22

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – Appeal against sentence – assault, malicious damage to property and use of offensive instrument – application to tender medical evidence not before sentencing court – reports available at the time of sentence hearing and reports not available – whether evidence should be received – whether counsel failed to seek evidence now available

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Deng [2007] NSWCCA 216

PARTIES: David Brian Lynch (Appl)
The Crown

FILE NUMBER(S): CCA 2007/3219

COUNSEL: I Todd (Appl)
N Adams (Crown)

SOLICITORS: AKN & Associates (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/41/0049

LOWER COURT JUDICIAL OFFICER: Garling DCJ

LOWER COURT DATE OF DECISION: 1 August 2006

2007/3219

McCLELLAN CJ at CL
HOWIE J
HARRISON J
TUESDAY 4 SEPTEMBER 2007

LYNCH, David v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to three charges as follows:

· On 9 September 2004 at Sussex Inlet in the State of New South Wales did assault Shane Botterill.

· On 9 September 2004 at Sussex Inlet in the State of New South Wales did maliciously damage property, namely, the dwelling house at 14 Glanville Road.

· On 9 September 2004 at Sussex Inlet in the State of New South Wales did use an offensive instrument, namely a motor vehicle, with intent to commit a serious indictable offence, namely intimidation.

2 The first charge was an offence contrary to s 61 of the Crimes Act and carries a maximum penalty of 2 years imprisonment. The second charge was an offence contrary to s 195(1)(a) of the Crimes Act for which the maximum penalty was 5 years imprisonment. The third charge was an offence contrary to s 33B of the Crimes Act for which the maximum penalty is 12 years imprisonment.

3 In relation to the third charge an offence of breach of an apprehended violence order was included on a Form 1 and taken into account by the sentencing judge.

4 In relation to each of counts 1 and 2 the applicant was sentenced to a fixed term of imprisonment of 9 months the sentences to be served concurrently. The sentencing judge declined to set a non-parole period because of the more lengthy sentence imposed in relation to count 3. In relation to that count the applicant was sentenced to a non-parole period of 1 year and 3 months with a total term of 2 years and 6 months imprisonment.

The facts

5 The sentencing judge found the following facts:

“The prisoner had spoken to his daughter. It was her seventeenth birthday; he wanted to see her to give her a present. There had been a previous…

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 Lynch v The Queen

Details

AGLC: Lynch v The Queen [2007] NSWCCA 268
Case: [2007] NSWCCA 268
Decision Date: 4 September 2007

CaseChat Overview and Summary

The appeal in Lynch v The Queen involves the respondent, the Queen, and the appellant, Lynch, who was convicted of assault, malicious damage to property, and use of an offensive instrument. Lynch had been sentenced to imprisonment and was appealing against the severity of the sentence. One of the arguments presented during the appeal was whether the sentencing court should have received certain medical evidence that was not available at the time of the original sentencing. The appellant's counsel argued that the evidence should have been considered because it was available at the time of the appeal hearing. The appeal raised questions about the process of tendering medical evidence and the responsibilities of legal counsel in ensuring that all relevant evidence is presented to the court.

The court considered whether it was appropriate to receive the medical evidence that had not been presented at the original sentencing hearing. The issues also included whether the appellant's counsel had a duty to seek out and present the available evidence, and if there was any prejudice caused by not having this evidence at the time of the original sentencing. The court examined the principles surrounding the admissibility of new evidence in an appeal against sentence and the role of legal counsel in ensuring that all material evidence is presented to the court. The court also needed to determine whether the failure to present the evidence constituted a breach of the appellant's right to a fair trial.

The court held that the medical evidence could be received as it was relevant to the appellant's sentence. The court found that the appellant's counsel had not breached their duty by failing to seek out the evidence as it was not available at the time of the original sentencing. The court emphasised that the primary responsibility for ensuring all material evidence is presented lies with the party seeking to rely on it. The court found that there was no prejudice to the appellant as the evidence did not alter the overall circumstances of the case or the severity of the sentence. The appeal against sentence was dismissed, and the original sentence was upheld.

Orders