Gleeson JA at [1] Wright J at [3] Cavanagh J at [141]
Decision:
(1) The applicant has leave to make his application out of time.
(2) The applicant has leave to appeal.
(3) The appeal is dismissed.
Catchwords:
CRIME – Appeals – Appeal against sentence – - Section 33(1)(a) of the Crimes Act 1900 (NSW) – Wounding with intent to cause grievous bodily harm – Determination of the objective seriousness of the offence – Sentencing judge made finding that injuries amounted to grievous bodily harm – Whether the principles in The Queen v De Simoni breached – Whether finding resulted in a miscarriage of justice – Sentencing judge entitled to take into account the injuries he did in the way he did
Legislation Cited:
Crimes Act 1900 (NSW), ss 5, 33(1)(a), 33(1)(b), 35, 86(3),
MF Maybury (Applicant) State of New South Wales (Respondent)
Representation:
Counsel: T Ramrakha (Applicant) E Wilkins SC (Respondent) Solicitors: Legal Aid NSW (Applicant) Office of the Director for Public Prosecutions (Respondent)
File Number(s):
2018/184552
Decision under appeal
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
21 December 2020
Before:
North DCJ
File Number(s):
2018/184552
Headnote
[This headnote is…
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
Maybury v The The King [2022] NSWCCA 233
Case
[2022] NSWCCA 233
Decision Date
CaseChat Overview and Summary
The appeal before the court involved the appellant, Maybury, who contested the sentence imposed on him by the lower court for a charge of wounding with intent to cause grievous bodily harm. The appeal was heard in the New South Wales Court of Criminal Appeal. The appellant argued that the sentencing judge's determination of the objective seriousness of the offence was flawed, contending that the principles outlined in The Queen v De Simoni had been misapplied. The crux of the appeal was whether the sentencing judge's assessment of the injuries as amounting to grievous bodily harm constituted a miscarriage of justice and whether the judge was entitled to consider the injuries in the manner that he did.
The court examined the legal issues concerning the application of Section 33(1)(a) of the Crimes Act 1900 (NSW) and the principles set forth in The Queen v De Simoni. It was essential to determine whether the sentencing judge's consideration of the injuries aligned with the established legal framework and whether the determination of grievous bodily harm was appropriate. The court also assessed whether the sentencing judge's approach to the case resulted in an unjust outcome and whether the principles of The Queen v De Simoni were correctly applied.
In ruling on the appeal, the court concluded that the sentencing judge was entitled to assess the injuries in the way he did. The court held that the principles in The Queen v De Simoni did not prohibit the sentencing judge from considering the objective seriousness of the offence in light of the injuries sustained. The court found that the sentencing judge's determination of grievous bodily harm was not erroneous and did not result in a miscarriage of justice. Consequently, the appeal was dismissed, and the original sentence was upheld.