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Patsan v R

Patsan v R

Case [2018] NSWCCA 129 29 June 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Patsan v R [2018] NSWCCA 129
Hearing dates: 1 June 2018
Decision date: 29 June 2018
Before: Bathurst CJ at [1];
Leeming JA at [2];
Adamson J at [3]
Decision:
Refuse leave to appeal against sentence.

Catchwords:
CRIME – application for leave to appeal against sentence – alleged manifest excess – domestic violence offence – relevance of dynamic between participants – importance of general and specific deterrence and denunciation – no error established
CRIME – application for leave to appeal against sentence – statistics particularly unhelpful when charge on Form 1 taken into account in sentence for index offence
Legislation Cited: Crimes Act 1900 (NSW) ss 35(2), 59
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 32-33
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cherry v R [2017] NSWCCA 150
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions v Darcy-Shillingsworth [2017] NSWCCA 224
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
Category: Principal judgment
Parties: George Patsan (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Skinner (Applicant)
T Smith (Respondent)
Solicitors:
N Felton (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/111835
Decision under appeal

Court or tribunal:

District Court at Newcastle

Jurisdiction:

Criminal

Date of Decision:

4 August 2017

Before:

Bright DCJ

File Number(s):

2016/111835

Judgment

BATHURST CJ: I agree with the orders proposed by Justice Adamson and with her Honour’s reasons.
LEEMING JA: I agree with Adamson J.
ADAMSON J: George Patsan (the applicant) seeks an extension of time for leave to appeal against a sentence imposed by Bright DCJ on 4 August 2017.
Her Honour imposed a sentence of 2 years and 3 months’ imprisonment commencing on 4 August 2017 and expiring on 3 November 2019, with a non-parole period of 1 year and 4 months, expiring on 3 December 2018, for recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW), to which the applicant pleaded guilty. A further charge of assault occasioning actual bodily harm contrary to s 59 of the Crimes Act was taken into account in the sentence on a Form 1 pursuant to ss 32-33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
By his plea, the applicant can be taken to have admitted that he in fact caused grievous bodily harm, although he is not to be sentenced as if he intended to cause grievous bodily harm. The plea involved an acceptance that the…

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 Patsan v R

Details

AGLC: Patsan v R [2018] NSWCCA 129
Case: [2018] NSWCCA 129
Decision Date: 29 June 2018

CaseChat Overview and Summary

In the High Court of Australia, the case of Patsan v R involved an appeal by the respondent against a sentence imposed by the Supreme Court of New South Wales. The appellant, Patsan, was convicted of domestic violence offences. The appeal focused on the application for leave to appeal against the sentence, which the respondent argued was manifestly excessive. The core issue was the relevance of the dynamic between the participants in the offence, as well as the importance of general and specific deterrence and denunciation in sentencing. The respondent argued that the sentence imposed was too severe given the circumstances.

The court considered whether there was any established error in the sentencing process that warranted an appeal. The appellant contended that the sentence was manifestly excessive and that the trial judge failed to appropriately consider certain mitigating factors. The court examined the dynamic between the parties, the role of deterrence and denunciation, and the relevance of statistics in sentencing, particularly when considering the charge on Form 1 in relation to the index offence. The High Court held that no such error was evident and that the trial judge had appropriately exercised their discretion in sentencing.

The court found that the trial judge had given due consideration to the dynamic between the parties and the principles of general and specific deterrence and denunciation. The High Court emphasised that the sentencing judge had a broad discretion in determining an appropriate sentence and that the appeal judge should not lightly interfere with the trial judge's assessment. The court also noted that statistics were of limited relevance when considering the specific circumstances of the case. The application for leave to appeal against the sentence was dismissed.

No orders were made as the application for leave to appeal was dismissed.

Orders