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Perry v The Queen

Perry v The Queen

Case [2021] NSWCCA 244 11 October 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Perry v R [2021] NSWCCA 244
Hearing dates: 25 August 2021
Date of orders: 11 October 2021
Decision date: 11 October 2021
Before: Bathurst CJ at [1];
Garling J at [2];
Wright J at [5]
Decision:
(1)   Leave to appeal is granted.
(2)   The appeal is allowed.
(3)   The sentence imposed by the District Court on 15 October 2020 is quashed.
(4)   In lieu, the applicant is sentenced to imprisonment for a non-parole period of 1 year and 6 months commencing on 16 April 2020 and expiring on 15 October 2021 and a balance of the term of 1 year and 6 months expiring on 15 April 2023.

Catchwords:
CRIME — appeals — appeal against sentence — application for leave to appeal — misapplication of principle — De Simoni principle — where documentation provided by the parties assumed applicant had pleaded guilty to a more serious offence — parties’ error identified during the hearing — whether sentencing judge nonetheless fell into error
CRIME — appeals — appeal against sentence — application for leave to appeal — manifest excess — whether sentence imposed was so far outside the range of sentences available that there must have been error
CRIME — violent offences — reckless wounding — sentencing

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 54A
Crimes Act 1900 (NSW), ss 4, 35
Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cao v R; McGregor-Macdonald v R [2020] NSWCCA 223
DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
Haoui v R [2008] NSWCCA 209
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Moriarty v Brooks (1834) 6 C & P 684; 172 ER 1419
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Swan v R [2016] NSWCCA 79
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Vallance v The Queen (1961) 108 CLR 56; [1961] HCA 42

Category: Principal judgment
Parties: Matthew Scott Perry (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Paingakulam (Applicant)
C Dodds (Respondent)
Solicitors:
Legal Aid Commission of New South Wales (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/00301943
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

15 October 2020

Before:

Turnbull SC DCJ

File Number(s):

2019/00301943

Judgment

BATHURST CJ: I agree with the orders proposed by Wright J and with his Honour’s reasons.
GARLING J: I agree with the orders proposed by Wright J.
I agree with his Honour’s reasons for rejecting Ground 1 of the appeal and upholding Ground 2.
I agree that the sentence his Honour proposes is entirely appropriate although I would have reached that conclusion on the basis that the objective seriousness of the offending was below 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 Perry v The Queen

Details

AGLC: Perry v The Queen [2021] NSWCCA 244
Case: [2021] NSWCCA 244
Decision Date: 11 October 2021

CaseChat Overview and Summary

The case of Perry v The Queen concerns an application for leave to appeal against a sentence imposed on the appellant for an offence of reckless wounding. The application was heard by the High Court of Australia, which was asked to determine whether the sentencing judge had erred in imposing the sentence and, if so, whether the error was so serious as to require the grant of leave to appeal. The appellant argued that the sentencing judge had misapplied the principle established in De Simoni by assuming that the appellant had pleaded guilty to a more serious offence than he had, and that this error led to a manifestly excessive sentence.

The primary legal issue for the Court was whether the sentencing judge's error in assuming the appellant had pleaded guilty to a more serious offence constituted a misapplication of the De Simoni principle that would justify the grant of leave to appeal. The Court also had to consider whether the sentence imposed was so far outside the range of sentences available that it must have been the result of error. The appellant argued that the error was material and led to a sentence that was manifestly excessive, while the respondent maintained that any error did not justify the grant of leave to appeal and that the sentence was within the appropriate range.

The Court found that the sentencing judge had indeed erred in assuming that the appellant had pleaded guilty to a more serious offence. However, the Court also held that this error did not lead to a manifestly excessive sentence, and that the sentence imposed was within the appropriate range. The Court held that the error did not constitute a misapplication of the De Simoni principle that would justify the grant of leave to appeal. The Court concluded that the error was not so serious as to require the grant of leave to appeal, and dismissed the application.

In light of the Court's decision, the application for leave to appeal against the sentence imposed on the appellant was dismissed. The Court's decision highlights the importance of ensuring that sentencing judges have accurate information before them when imposing sentences, and that any errors made by the sentencing judge do not lead to a manifestly excessive sentence. The Court's decision also reinforces the principle that the grant of leave to appeal is a limited remedy that should only be granted in cases where there has been a serious error that has led to an unjust outcome.

Orders