Hoeben CJ at CL at [1]; Hamill J at [69]; Wilson J at [70]
Decision:
(1) Leave to appeal against sentence is granted.
(2) The appeal is dismissed.
Catchwords:
CRIMINAL LAW – sentence appeal – offences comprised aggravated take and detain a person with intent to obtain advantage, the circumstances of aggravation being the infliction of actual bodily harm and the advantage being psychological gratification – further offences of assault occasioning actual bodily harm and of driving with a high range content of alcohol in his blood were brought – with the exception of the driving offence, all offences were domestic violence related and committed against the same victim – aggregate sentence of 7 years imprisonment with a non-parole period of 4 years and 4 months – whether sentence was manifestly excessive – injuries described by sentencing judge as “horrific” and representing the most serious form of actual bodily harm – use by court of comparative cases – principles relevant to appellate review of aggregate sentencing – principles to be applied in domestic violence cases – manifest excess not made out – appeal against sentence dismissed.
Ashley McFarland – Applicant Regina – Respondent Crown
Representation:
Counsel: S Kluss – Applicant E Wilkins SC – Respondent Crown
Solicitors: Ross Hill and Associate Solicitors – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):
2018/337604
Decision under appeal
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
19 May 2020
Before:
Harris DCJ
File Number(s):
2018/337604
JUDGMENT
HOEBEN CJ at CL:
Offence and sentence
The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by her Honour Judge Harris (the sentencing judge) on 19 May 2020 in the District Court of New South Wales at Penrith.
The applicant…
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
McFarland v The Queen [2021] NSWCCA 79
Case
[2021] NSWCCA 79
Decision Date
CaseChat Overview and Summary
In the case of McFarland v The Queen, the respondent, who was the appellant in the court below, appealed against his sentence on the grounds that it was manifestly excessive. The appellant was convicted of various offences including aggravated take and detain a person with intent to obtain advantage, assault occasioning actual bodily harm, and driving with a high range content of alcohol in his blood. The aggravated take and detain offence was committed against the same victim as the assault occasioning actual bodily harm offence. The court was required to determine whether the aggregate sentence of 7 years imprisonment, with a non-parole period of 4 years and 4 months, was manifestly excessive.
The court considered the principles relevant to appellate review of aggregate sentencing and emphasised the importance of ensuring that the aggregate sentence reflects the totality of the offending and the culpability of the offender. The court also noted the principles to be applied in domestic violence cases, which include considering the impact of the offending on the victim and the need to deter and protect the community. The court reviewed the comparative cases and concluded that the sentence was not manifestly excessive, taking into account the severity of the injuries inflicted on the victim and the appellant's culpability.
The court found that the sentencing judge had appropriately considered the principles relevant to sentencing in domestic violence cases and had not erred in principle in arriving at the sentence. The court also noted that the appellant had a history of domestic violence offending and that the sentence reflected the seriousness of the offending. The appeal against sentence was dismissed.