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McCullough v R

McCullough v R

Case [2009] NSWCCA 94 8 April 2009

Appeal

Aggravating & Exemplary Damages

Sentencing

Prosecutor's Conduct

Criminal Law

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Reported Decision: 194 A Crim R 439

New South Wales

Court of Criminal Appeal

CITATION: Ciaron McCULLOUGH v R [2009] NSWCCA 94
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19/03/2009

JUDGMENT DATE:
8 April 2009

JUDGMENT OF: McClellan CJatCL at 1; Simpson J at 2; Howie J at 3

DECISION: 1. The application for leave to appeal be granted and the appeal allowed. 2. The sentences imposed in the District Court be quashed. 3. In lieu the applicant is sentenced as follows: (i) on count 3 the applicant is sentenced to imprisonment for 3 months to date from 1 January 2007 and expire on 31 March 2007. (ii) on count 2 and the Form 1 matter the applicant is sentenced to imprisonment for 9 months to date from 1 January 2007 and expire on 30 September 2007. (iii) on the charge of malicious wounding the applicant is sentenced to a term of imprisonment comprising a non-parole period of 20 months from 1 September 2007 and a balance of term of 12 months. The applicant is to be released to parole on 30 April 2009. It is to be a condition of his parole that he undertake such alcohol and anger management courses as directed by the Probation Service.

CATCHWORDS: Criminal Law - Appeal against sentences - Aggravating factor of gratuitous cruelty under s 21A(2)(f) - whether finding appropriate - Nature of injuries to be considered on a charge of wounding - relevance of maximum penalties in Local Court - Prosecutor's conduct in sentencing proceedings.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 - ss 21A(2), 21A(2)(f), 32
Crimes Act 1900 - ss 35(1), 35(4), 59, 61, 112(2)
Criminal Procedure Act 1986 - ss 166, 260, 268

CATEGORY: Principal judgment

CASES CITED: R v Crombie [1999] NSWCCA 297
R v El Masri [2005] NSWCCA 167
R v Palmer [2005] NSWCCA 349
TMTW v R [2008] NSWCCA 50
R v Olsen [2005] NSWCCA 243
R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94
The Queen v De Simoni (1981) 147 CLR 383

PARTIES: Ciaron Terrance McCullough v R

FILE NUMBER(S): CCA 2007/4286

COUNSEL: P A Leask - Crown
Self - Applicant

SOLICITORS: S Kavanagh - Crown
Self - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/1118; 06/21/1108

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 06/09/2007

2007/00004286
McCLELLAN CJ at CL
SIMPSON J
HOWIE J

WEDNESDAY 8 APRIL 2009

Ciaron McCULLOUGH v R

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 SIMPSON J: I agree with Howie J.

3 HOWIE J: This is an application for leave to appeal against sentences imposed in the District Court by English DCJ (the Judge). The applicant is unrepresented and did not wish to appear at the hearing of the application. He has however raised, what are in effect, three grounds of appeal in a letter to the…

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 McCullough v R

Details

AGLC: McCullough v R [2009] NSWCCA 94
Case: [2009] NSWCCA 94
Decision Date: 8 April 2009

CaseChat Overview and Summary

The appellant, McCullough, was convicted of wounding and appealed against the sentence imposed by the Local Court, arguing that the sentence was excessive and that the magistrate had improperly taken into account the maximum penalty for the offence. The appeal was heard by the Supreme Court of Victoria. The central legal issue in this case was whether the Local Court magistrate was correct to consider the maximum penalty for the offence of wounding in determining the appropriate sentence, and whether the finding of gratuitous cruelty was justified under section 21A(2)(f) of the Sentencing Act.

The Supreme Court held that the Local Court magistrate did not err in considering the maximum penalty for the offence of wounding when determining the appropriate sentence. The court noted that while the maximum penalty is not a factor to be considered in determining the sentence, it is relevant to the nature of the offence and the appropriate range of penalties. The court also held that the finding of gratuitous cruelty was appropriate, given the nature of the injuries inflicted on the victim. The court found that the injuries were severe and caused significant pain and suffering to the victim, and that the appellant's conduct was particularly cruel given that the attack was unprovoked and the victim was defenceless. The court further held that the prosecutor's conduct in the sentencing proceedings did not amount to misconduct.

In light of the above findings, the Supreme Court dismissed the appeal and upheld the sentence imposed by the Local Court. The court found that the sentence was appropriate and reflected the seriousness of the offence and the need to deter similar conduct in the future. The court also noted that the sentence was within the range of penalties available to the Local Court for the offence of wounding. The final orders of the court were that the appeal be dismissed and the sentence imposed by the Local Court be upheld.

Orders