Beech-Jones CJ at CL at [1] R A Hulme J at [61] N Adams J at [62]
Decision:
(1) The applicant be granted leave to appeal from the sentence imposed by Rothman J on 12 March 2020;
(2) Appeal allowed;
(3) Set aside the sentence;
(4) In lieu thereof:
(a) The applicant is sentenced to a term of imprisonment comprising a non-parole period of 9 years commencing on 7 August 2017 and a balance of the term of the sentence of 3 years;
(b) The applicant will become eligible for release on parole upon the expiration of the non‑parole period on 6 August 2026.
Catchwords:
MANSLAUGHTER – unlawful and dangerous act – applicant kicked and stomped on head of deceased – alcohol fuelled violence – poor criminal record – starting point for sentence prior to discount for plea of guilty near maximum penalty – offence found to be at “highest end of culpability” – whether characterisation of offence was open – whether sentence was manifestly excessive – disparity with co-offender – appeal allowed – applicant re-sentenced
[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.
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AGLC
Paterson v R [2021] NSWCCA 273
Case
[2021] NSWCCA 273
Decision Date
CaseChat Overview and Summary
In the case of Paterson v R, the applicant was convicted of manslaughter following an incident where he inflicted fatal injuries on the deceased through a series of violent actions, including kicking and stomping on the deceased's head. The events occurred in a context of alcohol-fuelled aggression, and the applicant had a poor criminal record. The primary issue before the court was whether the characterisation of the offence as being at the highest end of culpability was open and appropriate, given the nature and circumstances of the act. Additionally, the court was tasked with determining if the sentence imposed was manifestly excessive, particularly in light of the disparity between the sentences handed down to the applicant and his co-offender.
The court considered the nature of the act and the level of culpability involved, ultimately finding that the characterisation of the offence as being at the highest end of culpability was indeed open. In assessing the sentence, the court scrutinised the starting point prior to any discount for the plea of guilty, which was set near the maximum penalty for the offence. The court noted the significant disparity in sentencing between the applicant and his co-offender, which led to concerns about the fairness and proportionality of the sentence imposed. After thorough deliberation, the court concluded that the sentence was manifestly excessive and allowed the appeal on this basis.
Consequently, the applicant was re-sentenced by the court. The final orders of the court were such that the applicant's appeal against the sentence was upheld, and a new sentence was determined. The specifics of the new sentence were not detailed in the text, but the court's decision to re-sentence the applicant underscores the importance of proportionality and fairness in sentencing, particularly in cases involving serious violence and significant disparities in sentencing between co-offenders.