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McIntyre v R

McIntyre v R

Case [2009] NSWCCA 305 18 December 2009

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Reported Decision: 198 A Crim R 549

New South Wales

Court of Criminal Appeal

CITATION: McIntyre v R [2009] NSWCCA 305

HEARING DATE(S): 4 December 2009

JUDGMENT DATE:
18 December 2009

JUDGMENT OF: Macfarlan JA at 1; Blanch J at 2; Johnson J at 3

DECISION: 1. Leave to appeal granted.
2. Appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - pleas of guilty - assault occasioning actual bodily harm under s.59 Crimes Act 1900 - assault police officer in execution of duty under s. 58 Crimes Act 1900 - breach of De Simoni principle concerning s.58 offence - injury caused by assault impermissibly taken into account in assessing objective seriousness of s. 58 offence - relevance of availability of summary disposal - vulnerable victim of s.59 offence - significance of general deterrence on sentence for assault against police - whether sentences manifestly excessive - appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Summary Offences Act 1988
Mental Health Act 2007
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: The Queen v De Simoni (1981) 147 CLR 383
R v Hooper [2004] NSWCCA 10
R v Knight (1988) 35 A Crim R 314
Fitzgerald v Kennard (1995) 38 NSWLR 184
Mikhael v Conroy (Finlay J, 6 December 1990, unreported, BC9002962)
Lake Macquarie City Council v Morris (2005) 63 NSWLR 263
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1991]-[1992] 175 CLR 218
Collins v Wilcock [1984] 1 WLR 1172
R v Overall (1993) 71 A Crim R 170
R v Lardner (NSWCCA, 10 September 1998, unreported, BC9804715)
R v Cameron [1983] 2 NSWLR 66
Li v R [2005] NSWCCA 442
R v Abboud [2005] NSWCCA 251
R v Thorpe (NSWCCA, 17 December 1992, unreported, BC9201406)
Barton v R [2009] NSWCCA 285
Edwards v R [2009] NSWCCA 199
R v Crombie [1999] NSWCCA 297
R v Gent (2005) 162 A Crim R 29
McCullough v R [2009] NSWCCA 94
Nguyen v R [2009] NSWCCA 283
Markarian v The Queen [2005] 228 CLR 357
Re Attorney General’s Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No. 2) of 2002 (2002) 137 A Crim R 196
R v McNaughton (2006) 66 NSWLR 566
R v MAK and MSK (2006) 167 A Crim R 159
R v Hamid (2006) 164 A Crim R 179

PARTIES: Stuart James McIntyre (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2009/1399

COUNSEL: Mr D Carroll; Mr N Kirby (Applicant)
MS NJ Gouda (Respondent)

SOLICITORS: Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/1399

LOWER COURT JUDICIAL OFFICER: Syme DCJ

LOWER COURT DATE OF DECISION: 8 May 2009

2009/1399

MACFARLAN JA
BLANCH J
JOHNSON J
18 December 2009

STUART JAMES McINTYRE v REGINA

Judgment

1 MACFARLAN JA: I agree with Johnson J.

2 BLANCH J: I agree with Johnson J.

3 JOHNSON J: The Applicant, Stuart James McIntyre, seeks…

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 McIntyre v R

Details

AGLC: McIntyre v R [2009] NSWCCA 305
Case: [2009] NSWCCA 305
Decision Date: 18 December 2009

CaseChat Overview and Summary

The appeal before the court involved the appellant, McIntyre, who had pleaded guilty to two charges: assaulting a police officer while that officer was in the execution of their duty, and assaulting another individual, causing actual bodily harm. The appellant's actions resulted in the victim suffering a fractured jaw and the loss of two teeth. The case was heard in the High Court of Australia. The legal issues the court had to address were whether the trial judge had breached the principle established in De Simoni, concerning the sentencing of offences under section 58 of the Crimes Act 1900, and whether the sentences imposed were manifestly excessive.

The court held that the trial judge had indeed breached the De Simoni principle by taking into account the injury caused by the assault when assessing the seriousness of the offence under section 58. The court further noted that the relevance of the availability of summary disposal and the significance of the victim being vulnerable to the section 59 offence were factors that should have been considered. The court emphasised the importance of general deterrence in sentencing for assaults against police officers. Despite these errors, the court found that the sentences were not manifestly excessive and dismissed the appeal. The reasoning was that, while the trial judge erred in the sentencing process, the overall punishment remained within a reasonable range and did not warrant an appeal.

Orders