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 517Category: Principal judgment Parties: Manisha Patel (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
T Game SC with T Quilter (Applicant)
H Baker SC with H Roberts (Respondent)
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
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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.
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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…
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- AGLC
- Patel v The Queen [2019] NSWCCA 170
- Case
- [2019] NSWCCA 170
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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