Counsel: S Pararajasingham (Applicant) H Roberts (Crown)
Solicitors: Sydney Criminal Lawyers (Applicant) Director of Public Prosecutions (NSW) (Crown)
File Number(s):
2016/41550; 2015/365445
Decision under appeal
Court or tribunal:
Sydney District Court
Jurisdiction:
Criminal
Date of Decision:
25 August 2017
Before:
Frearson SC DCJ
File Number(s):
2016/41550; 2015/365445
Judgment
HOEBEN CJ at CL: I agree with Adamson J and the orders which she proposes.
SCHMIDT J: I also agree with Adamson J.
ADAMSON J: The applicant, Kane McDowall, seeks leave to appeal against the aggregate sentence imposed on him by Frearson SC DCJ on 25 August 2017. Leave is sought on the following three grounds:
“1. His Honour erred in failing to make a finding of objective seriousness in relation to the offence of assault with intent to taking a motor vehicle contrary to s 154C Crimes Act 1900.
2. The disparity between the sentence imposed on the applicant and co-offender Timothy Clynch gives rise to a justifiable sense of grievance by the applicant.
3. The sentence is manifestly excessive.”
Because a parity ground requires acceptance that the sentence is otherwise free from error, I propose to address grounds 1 and 3 before turning to ground 2.
The applicant and his co-offender, Timothy Clynch, engaged in a series of offences on 9 or 10, 12 and…
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
McDowall v R [2019] NSWCCA 29
Case
[2019] NSWCCA 29
Decision Date
CaseChat Overview and Summary
The appellant, McDowall, applied for leave to appeal against his sentence imposed by the Supreme Court of Victoria. The case involved a dispute over the sentencing process and the resultant sentence, which the appellant argued was excessive and resulted from an incorrect assessment of the objective seriousness of the offence. The High Court was required to determine whether there was an error in the assessment of the objective seriousness of the offence and whether the sentence was manifestly excessive.
The primary legal issues for the court to decide were whether there was an error in the assessment of the objective seriousness of the offence and whether the sentence imposed was manifestly excessive. The appellant argued that the trial judge failed to consider certain mitigating factors, leading to an incorrect assessment of the objective seriousness of the offence and an excessive sentence. The appellant further contended that the sentence imposed was disproportionate when compared to sentences imposed in similar cases.
The court held that there was no error in the assessment of the objective seriousness of the offence as the trial judge had considered all relevant mitigating and aggravating factors. The court found that the sentence was not manifestly excessive, as it was within the range of sentences that could be imposed for the offence. The court emphasised the importance of the trial judge's discretion in sentencing and that the sentence imposed was not an error. The appellant's application for leave to appeal was dismissed.
No further orders were made by the court. The appellant's application for leave to appeal was denied, and the original sentence imposed by the Supreme Court of Victoria remained in effect.