N C H v The Queen - [2012] VSCA 129

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0008

NCH	Appellant
	v
THE QUEEN	Respondent

---

JUDGES	BUCHANAN and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 June 2012
DATE OF JUDGMENT	13 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 129
JUDGMENT APPEALED FROM	DPP v [NCH] (Unreported, County Court of Victoria, Judge Hannan, 14 December 2011)

---

CRIMINAL LAW – Appeal against sentence – Manifest excess – Whether insufficient weight given to cooperation and undertaking to assist the authorities – Appeal refused – No point of principle.

---

APPEARANCES:	COUNSEL	SOLICITORS
For the Appellant	Mr L C Carter	Lewenberg & Lewenberg
For the Respondent	Ms D Karamicov	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I will ask Osborn JA to deliver the first judgment.

OSBORN JA:

On 14 December 2011, the appellant, having pleaded guilty to one count of intentionally causing serious injury, was sentenced to four years’ imprisonment by Judge Hannan. Her Honour fixed a non-parole period of two years and declared that but for the appellant’s plea of guilty she would have sentenced the appellant to five years six months’ imprisonment with a non-parole period of three years and four months. The maximum penalty applicable was 20 years’ imprisonment.

The appellant now appeals by leave on the ground that the sentence was manifestly excessive.

The appellant’s victim was employed at a nightclub as a promoter and was responsible for facilitating VIP entry into the club. From October 2010 onwards, he was approached by the appellant and others associated with him on four or five occasions seeking entry to the club. The group was initially denied entry because of a lack of appropriate identification and subsequently refused entry because of the fear they would cause trouble. The appellant and another member of the group were placed on a banned list. At one point, one of the group threatened the victim with future trouble and warned him that he should not bother opening the club again.

On the night of 18 February 2011, the victim was standing at the nightclub entrance holding an umbrella. The appellant and two others ran up from behind the victim and stabbed him repeatedly. Each of the three men was armed with a knife. Each struck blows.

The appellant states, and the Crown does not contest, that he was given the knife a short time prior to the assault and that he was not the prime instigator of the attack.

Nevertheless, it is plain that the attack was vicious and premeditated, utilised dangerous weapons and was undertaken as a joint venture clearly aimed at seriously injuring the victim. Self-evidently, the victim’s ability to defend himself was materially reduced by the fact he was jointly assaulted from behind by three men each wielding knives. In these circumstances, the appellant must bear responsibility for the joint attack in which he participated as a principal offender.

The victim suffered multiple stab wounds including a stab wound to his abdomen which perforated his…

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 N C H v The Queen

Details

AGLC: N C H v The Queen [2012] VSCA 129
Case: [2012] VSCA 129
Decision Date: 13 June 2012

CaseChat Overview and Summary

In the High Court of Australia, the case of N C H v The Queen dealt with an appeal against the sentence handed down to the appellant by a lower court. The appellant, N C H, had been found guilty of several criminal offences and was appealing the severity of the sentence imposed, arguing it was manifestly excessive. The appeal raised questions about whether the lower court had adequately considered the appellant's cooperation with authorities and their promise to assist in further investigations.

The central legal issues in the appeal were whether the lower court had erred in its assessment of the sentence by not sufficiently weighing the mitigating factors of the appellant's cooperation and commitment to assist in ongoing investigations. The appellant's counsel argued that the lower court had failed to properly account for these factors, which should have resulted in a more lenient sentence. The Crown, represented by the Queen, contended that the sentence was appropriate given the nature and seriousness of the offences committed.

The High Court found that while the lower court had acknowledged the appellant's cooperation, it had adequately considered the mitigating factors in the overall sentencing process. The Court held that the sentence was not manifestly excessive and that there was no error of principle in the way the lower court had approached the sentencing. Consequently, the appeal was dismissed, and the original sentence was upheld. The Court did not find that the case presented a point of principle that required further clarification or elaboration.

Orders