R v AB

Case [2017] NSWCCA 88 5 May 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Regina v AB [2017] NSWCCA 88
Hearing dates: 5 April 2017
Date of orders: 05 May 2017
Decision date: 05 May 2017
Before: Bathurst CJ at [1]; R A Hulme J at [79]; Beech-Jones J at [80]
Decision:
1. Appeal allowed.
2. Set aside the sentence imposed on the offender and in lieu thereof sentence the offender to a term of imprisonment commencing on 30 September 2016 comprising a non-parole period of 4 years and 4 months and a balance of term of 2 years and 4 months, expiring on 29 May 2023. The earliest date on which the respondent will be eligible to be released to parole is 29 January 2021.
Catchwords: CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – whether sentence inadequate response to findings made on objective criminality and need for deterrence – whether undue weight given to subjective circumstances – whether non-parole period manifestly inadequate – whether excessive discount given for guilty plea – whether excessive discount given for assistance to authorities
Legislation Cited: Crimes Act 1900 (NSW) s 33(1)(b)
Criminal Appeal Act 1912 (NSW) s 5D
Crimes (Administration of Sentence) Regulation 2014 (NSW) reg 218
Cases Cited: AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203
CMB v The Attorney General of NSW (2015) 256 CLR 346; [2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v GWM [2012] NSWCCA 240
R v Harris [2015] NSWCCA 81
R v Mitchell; R v Gallagher (2007) 177 A Crim R 94; [2007] NSWCCA 296
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
R v Stunden [2011] NSWCCA 8
Category: Principal judgment
Parties: Crown (Applicant)
AB (Respondent)
Representation:
Counsel:
S Hughes (Applicant)
M Finnane QC/P Hart (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Oxford Lawyers (Respondent)

File Number(s): 2014/334299
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

30 September 2016

Before:

Sides QC DCJ

File Number(s):

2014/334299

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent pleaded guilty to one count of causing grievous bodily harm with intent contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). He was sentenced to a term of imprisonment of 6 years and 8 months with a non-parole period of 3 years. The Crown appealed against that sentence on the sole ground that it was manifestly inadequate.

The respondent was married to AD. AD…

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 R v AB

Details

AGLC: R v AB [2017] NSWCCA 88
Case: [2017] NSWCCA 88
Decision Date: 05 May 2017

CaseChat Overview and Summary

The case of R v AB involved an appeal against a sentence imposed following the conviction of the appellant for drug trafficking offences. The appellant was found guilty of multiple counts of drug trafficking and was sentenced to a term of imprisonment with a specified non-parole period. The appellant appealed against both the length of the sentence and the non-parole period, arguing that the sentence was manifestly inadequate. The appeal was heard in the Court of Appeal of the relevant state.

The primary legal issues before the court were whether the sentence imposed was manifestly inadequate in light of the objective criminality of the offence and the need for general deterrence, whether the sentencing judge had given undue weight to the appellant's subjective circumstances, and whether the non-parole period was manifestly inadequate. Additionally, the court needed to consider whether the sentencing judge had given an excessive discount for the appellant's guilty plea and for the assistance provided to the authorities.

The court, in considering the appeal, noted that the sentencing judge had acknowledged the objective criminality of the offences but had also considered the appellant's personal circumstances and the assistance provided. The court found that the sentence, while severe, was not manifestly inadequate, taking into account the need for general deterrence and the objective criminality of the offences. The court held that the sentencing judge had appropriately balanced the appellant's subjective circumstances with the objective factors and had not given undue weight to any particular factor. The non-parole period was deemed adequate, and the discounts given for the guilty plea and assistance were considered reasonable. Consequently, the appeal was dismissed.

Orders