Owen v R

Case [2022] NSWCCA 214 24 October 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Owen v R [2022] NSWCCA 214
Hearing dates: 26 September 2022
Date of orders: 24 October 2022
Decision date: 24 October 2022
Before: Garling J at [1]
Adamson J at [83]
N Adams J at [84]
Decision:
(1) Grant leave to the applicant to appeal against his sentence.
(2) Dismiss the appeal.

Catchwords:
CRIME — Appeals — Appeal against sentence — Failure to determine objective criminality of offence — Ground upheld
CRIME — Appeals — Appeal against sentence — Failure to take account of “Bugmy factors” — No relevant evidence of such factors — No relevant submission made below — Ground dismissed
CRIME — Appeals — Appeal against sentence — Re-sentence — No lesser sentence warranted

Legislation Cited:
Crimes Act 1900

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581
Gal v R [2015] NSWCCA 242
Khan v R [2022] NSWCCA 47
Paterson v R [2021] NSWCCA 273
R v Campbell [2014] NSWCCA 102
R v Van Ryn [2016] NSWCCA 1
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460

Texts Cited:
Not applicable

Category: Principal judgment
Parties: Tyson Tauteka Owen (App)
The Crown (Crown)
Representation:
Counsel:
T O’Rourke (App)
D Scully (Crown)
Solicitors:
Abbas & Co Lawyers (App)
Solicitor for Public Prosecution (Crown)

File Number(s): 2020/320002
Publication restriction: Not applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 421

Date of Decision:

19 August 2021

Before:

Haesler SC DCJ

File Number(s):

2020/320002

Judgment

GARLING J: Tyson Tauteka Owen (“the applicant”) seeks leave to appeal against the sentence imposed on him by Haesler SC DCJ (“the Judge”) on 19 August 2021.
The applicant was sentenced to a term of imprisonment of 3 years with a non‑parole period of 18 months for a single offence contrary to s 35(2) of the Crimes Act 1900 of reckless infliction of grievous bodily harm.
An offence against s 35(2) of the Crimes Act has a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years imprisonment.
In sentencing the applicant, the Judge allowed a reduction in the sentence which would otherwise have been imposed of 25% to take into account the utilitarian value of the applicant’s early guilty plea. This discount was not the subject of any dispute between the parties.
The Judge sentenced the applicant on the basis of an agreed set of facts, to which it will be necessary to refer in due course.
The sentence imposed by the Judge was fixed to commence on 3 August 2021. It will expire on 2 August 2024. The non-parole period expires on 2 February 2023.
A Notice of Intention to Appeal was filed on 23 August 2021, and a Notice of Appeal was filed on 1 July 2022. The applicant relied on two grounds of appeal. They were that:

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 Owen v R

Details

AGLC: Owen v R [2022] NSWCCA 214
Case: [2022] NSWCCA 214
Decision Date: 24 October 2022

CaseChat Overview and Summary

The appellant, Owen, appealed against his sentence imposed by the Supreme Court of New South Wales for a crime of objective seriousness. The Crown, represented by the Director of Public Prosecutions, opposed the appeal. The appeal was heard in the High Court of Australia, which was required to determine whether the sentence was manifestly excessive or inadequate and whether the trial judge failed to take into account relevant factors when imposing the sentence.
The key legal issues before the court were whether the sentence was manifestly excessive or inadequate and whether the trial judge failed to take into account relevant factors, specifically the "Bugmy factors", when imposing the sentence. The appellant argued that the sentence was manifestly excessive and that the trial judge failed to take into account the "Bugmy factors". The Crown argued that the sentence was not manifestly excessive and that there was no relevant evidence of the "Bugmy factors" before the trial judge.
The court held that the sentence was not manifestly excessive or inadequate. However, the court found that the trial judge failed to take into account the "Bugmy factors" when imposing the sentence. The court noted that there was no relevant evidence of such factors before the trial judge and that no relevant submission was made below. The court held that the ground of appeal was upheld as the failure to determine the objective criminality of the offence was a ground for appeal. However, the court dismissed the ground that the trial judge failed to take into account the "Bugmy factors" as there was no relevant evidence of such factors before the trial judge and no relevant submission was made below. The court did not re-sentence the appellant as no lesser sentence was warranted.

Orders