Hoeben CJ at CL at [1]; Bellew J at [2]; Wright J at [3]
Decision:
(1) The applicant is granted leave to appeal.
(2) The appeal is dismissed.
Catchwords:
CRIMINAL LAW – Appeal – Appeal against sentence – Whether sentencing judge erred by taking into account the fact that the applicant was on conditional liberty in assessing the objective seriousness – Where a fair reading of the sentencing judge’s remarks did not support the conclusion that the applicant’s conditional liberty was taken into account in determining the objective seriousness – Whether sentencing judge failed properly to consider Bugmy principles or the evidence giving rise to the application of those principles – Evidence adequately considered and principles taken into account – Whether sentence manifestly excessive – Comparative cases considered – Leave to appeal granted – Appeal dismissed
[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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AGLC
McGuiness v The Queen [2021] NSWCCA 80
Case
[2021] NSWCCA 80
Decision Date
CaseChat Overview and Summary
McGuiness v The Queen involved an appeal against a sentence imposed on the applicant. The applicant was convicted of various offences and was appealing the severity of the sentence. The High Court of Australia was tasked with determining whether the sentencing judge had erred in several respects, including by taking into account the fact that the applicant was on conditional liberty when assessing the objective seriousness of the offences, and whether the sentencing judge had failed to properly consider the principles articulated in Bugmy or the evidence relevant to those principles.
The court first considered whether the sentencing judge had erred by taking into account the applicant's conditional liberty. The court found that a fair reading of the sentencing judge's remarks did not support the conclusion that the applicant's conditional liberty was considered when determining the objective seriousness of the offences. The court then examined whether the sentencing judge had failed to properly consider the Bugmy principles or the evidence giving rise to the application of those principles. The court held that the evidence had been adequately considered and the principles had been taken into account.
The court further examined whether the sentence was manifestly excessive. The court considered comparative cases and found that the sentence was not manifestly excessive. Ultimately, the court granted leave to appeal but dismissed the appeal, finding that the sentence was not manifestly excessive and that the sentencing judge had properly considered the relevant principles and evidence.