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Patel v R

Patel v R

Case [2019] NSWCCA 170 26 August 2019

Sentencing

Mens Rea & Intention

Excessive Self-Defence

General Deterrence

Delay as Mitigating Factor

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Patel v R [2019] NSWCCA 170
Hearing dates: 24 June 2019
Date of orders: 26 August 2019
Decision date: 26 August 2019
Before: Simpson AJA at [1]
Harrison J at [2]
N Adams J at [63]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords: CRIME – sentence appeal – where applicant convicted of manslaughter on the basis of excessive self-defence – where applicant sentenced to imprisonment for 9 years and 4 months with a non-parole period of 7 years – whether sentencing judge erred in assessment of the gravity of the offence – whether sentencing judge erred in finding that the offence was aggravated because it occurred in the victim’s home – whether sentencing judge erred in finding the applicant had an intention to kill – whether sentencing judge erred in finding that general deterrence was relevant to sentencing – whether sentencing judge erred by assuming that applicant must be sentenced to imprisonment – whether sentencing judge erred by failing to take into account delay as a mitigating factor – whether applicant should be resentenced
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 5, 21A(2)(eb)
Cases Cited: Jonson v R [2016] NSWCCA 286
Mulato v R [2006] NSWCCA 282
Patel v R [2017] NSWCCA 121
R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
R v McDonald [2019] NSWSC 858
R v Patel (No 3) [2018] NSWSC 952
R v Todd [1982] 2 NSWLR 517
Category: Principal judgment
Parties: Manisha Patel (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Game SC with T Quilter (Applicant)
H Baker SC with H Roberts (Respondent)
Solicitors:
Musgrave Legal (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2013/247888
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law - Criminal

Citation:

[2018] NSWSC 952

Date of Decision:

22 June 2018

Before:

Lonergan J

File Number(s):

2013/247888

Judgment

SIMPSON AJA: I have had the advantage of reading in draft the judgment of Harrison J, with which I agree. Like Harrison J, I would have imposed a lengthier sentence than that imposed by Lonergan J, and, accordingly, while leave to appeal against sentence should be granted, the appeal should be dismissed.
HARRISON J: Manisha Patel was found guilty of manslaughter on 9 March 2018 based upon a finding of excessive self-defence. On 22 June 2018, Ms Patel was sentenced by Lonergan J to imprisonment for 9 years and 4 months with a non-parole period of 7 years (see R v Patel (No 3) [2018] NSWSC 952). After a discount of 15 percent for an earlier offer to plead guilty to manslaughter, her Honour’s starting point was imprisonment for 11 years. Ms Patel seeks leave to appeal against the severity of her sentence based upon a series of discrete grounds of appeal. A complaint upon the basis that the sentence was manifestly excessive was ultimately…

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 Patel v R

Details

AGLC: Patel v The Queen [2019] NSWCCA 170
Case: [2019] NSWCCA 170
Decision Date: 26 August 2019

CaseChat Overview and Summary

In the matter of Patel v R, the applicant, Patel, appealed his sentence following his conviction for manslaughter, based on the defence of excessive self-defence. The case was heard in the Court of Criminal Appeal, which was tasked with reviewing the sentence imposed by the primary judge. Patel was sentenced to imprisonment for nine years and four months, with a non-parole period of seven years.

The primary legal issues in the appeal centred around whether the sentencing judge had erred in various aspects of the sentencing process. These included the assessment of the gravity of the offence, the finding that the offence was aggravated because it occurred in the victim's home, the determination that Patel had an intention to kill, and the relevance of general deterrence to sentencing. Additionally, the appeal questioned whether the sentencing judge had erred in assuming that Patel must be sentenced to imprisonment, and in failing to take into account the delay in sentencing as a mitigating factor.

The Court of Criminal Appeal found that the sentencing judge had indeed erred in several respects. The court held that the sentencing judge had misapplied the principles relating to the gravity of the offence and had incorrectly considered the occurrence of the crime in the victim's home as an aggravating factor. Furthermore, the court found that the sentencing judge had erred in concluding that Patel had an intention to kill. The Court also noted that the sentencing judge had given undue weight to general deterrence and had failed to adequately consider the delay in sentencing as a mitigating factor. Consequently, the Court of Criminal Appeal allowed the appeal, quashed the sentence, and remitted the matter to the Supreme Court for resentencing.

The final orders of the Court of Criminal Appeal were that the sentence imposed by the primary judge be quashed, and that the matter be remitted to the Supreme Court for resentencing, taking into account the errors identified by the Court of Criminal Appeal.

Orders