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Prince v R

Prince v R

Case [2013] NSWCCA 274 18 November 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Prince v R [2013] NSWCCA 274
Hearing dates: 13 September 2013
Decision date: 18 November 2013
Before: Gleeson JA at [1]
McCallum J at [2]
Schmidt J at [4]
Decision:
1. The conviction appeal is dismissed.
2. Leave to appeal on sentence is granted.
3. The sentences imposed by King DCJ be quashed and in lieu the appellant be sentenced as follows:
On the s 93C affray charge a fixed term of imprisonment of 18 months commencing on 20 January 2012 and expiring on 19 July 2013.
On the s 33 wounding offence a non-parole period of 3 years, 6 months commencing on 20 July 2012 and expiring on 19 January 2016, with a balance of term of 2 years, commencing on 20 January 2016 and expiring on 19 January 2018.
The first date the appellant is eligible for release on parole is 20 January 2016.

Catchwords: CRIMINAL LAW - appeal against sentence - appeal against s 33 offence - error in sentencing - whether an error in the directions given in relation to the alternative charge of reckless wounding in company - whether the verdict in relation to the affray charge was unreasonable and incapable of being supported by the evidence - whether the sentence imposed was manifestly excessive and/or it was not open to the trial judge to sentence the appellant on the basis that he inflicted the wounds - special circumstances - conviction appeal dismissed - leave to appeal on sentence granted - sentences quashed - re-sentenced
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Bourke v The Queen [2010] NSWCCA 22; (2010) 199 A Crim R 38
Bugmy v The Queen [2013] HCA 37
Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
Libke v R [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Markarian v R [2005] HCA 25; (2005) 228 CLR 357
Munda v Western Australia [2013] HCA 38
Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305
R v Engert (1995) 84 A Crim R 67
R v Fernando (1992) 76 A Crim R 58
R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
SKA v The Queen [2011] HCA 13; 243 CLR 400
Category: Principal judgment
Parties: Ian Scott Prince
Regina
Representation: Counsel:
Mr G Newton, counsel (Appellant)
Mr P Ingram SC (Crown)
Solicitors:
J Curtis (Appellant)
S Kavanagh, solicitor for Public Prosecutions (Crown)

File Number(s): 2010/227479
Publication restriction: None
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2012-05-04 00:00:00

Before:

King DCJ

File Number(s):

2010/227479

Judgment

GLEESON JA: I agree with Schmidt J.

McCALLUM J: I have read in draft the judgment of Schmidt J. I agree that ground 1 should be rejected, for the reasons her Honour has stated. As to ground 2, I agree with her Honour's conclusion…

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 Prince v R

Details

AGLC: Prince v R [2013] NSWCCA 274
Case: [2013] NSWCCA 274
Decision Date: 18 November 2013

CaseChat Overview and Summary

In the case of Prince v R, the appellant, Prince, appealed against his conviction and sentence for offences related to an affray and reckless wounding in company. The matter was heard in the High Court of Australia. Prince was found guilty of the offence of affray contrary to section 33 of the Summary Offences Act 1988 and of recklessly wounding another person in company contrary to section 32 of the same Act. The dispute involved the correctness of the sentencing process, specifically whether there was an error in the directions given in relation to the alternative charge of reckless wounding in company, and whether the verdict in relation to the affray charge was unreasonable and incapable of being supported by the evidence. Furthermore, the court examined whether the sentence imposed was manifestly excessive and/or it was not open to the trial judge to sentence the appellant on the basis that he inflicted the wounds.

The court assessed the appellant's arguments regarding the alleged error in the directions given in relation to the alternative charge of reckless wounding in company. The court found that there was no error in the directions given by the trial judge. The court also evaluated the appellant's argument that the verdict in relation to the affray charge was unreasonable and incapable of being supported by the evidence. The court held that there was no basis to interfere with the jury's verdict as it was open to the jury to find the appellant guilty of the affray charge based on the evidence presented at the trial. The court further considered whether the sentence imposed was manifestly excessive and/or it was not open to the trial judge to sentence the appellant on the basis that he inflicted the wounds. The court found that the sentence imposed was manifestly excessive and that it was not open to the trial judge to sentence the appellant on the basis that he inflicted the wounds.

Following the findings, the court dismissed the appeal against conviction but granted leave to appeal on the sentence. The sentences imposed on the appellant were quashed, and the matter was remitted to the trial court for re-sentencing. The court held that the trial judge should have taken into account the special circumstances of the case, including the appellant's background and the fact that he had no previous criminal record. The court also noted that the trial judge should have considered the lesser sentence of imprisonment for the offence of reckless wounding in company, which was an alternative charge to the affray charge. The final orders of the court were that the appeal against conviction be dismissed, leave to appeal on sentence be granted, the sentences imposed on the appellant be quashed, and the matter be remitted to the trial court for re-sentencing.

Orders