R v Brownlow - [2002] NSWCCA 404

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Brownlow [2002] NSWCCA 404

FILE NUMBER(S):
60379/02

HEARING DATE(S): 1 October 2002

JUDGMENT DATE: 03/10/2002

PARTIES:
Regina
Peter Austin Brownlow

JUDGMENT OF: Meagher JA Sperling J Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/1164

LOWER COURT JUDICIAL OFFICER: O'Reilly DCJ

COUNSEL:
Mr L Lamprati for the Crown
Mr D Roberts (Solicitor) for the Respondent

SOLICITORS:
Mr S E O'Connor for the Director of Public Prosecutions
Mark Rumore for the Respondent

CATCHWORDS:
Criminal Law
malicious wounding
Crown appeal against sentence
no question of principle

LEGISLATION CITED:
Crimes Act 1900, s5, s35
Criminal Appeal Act 1912, s5D
Justices Act 1902, s51A

DECISION:
1. Appeal allowed
2. Vary the sentence by imposing a sentence of two years and 11 months imprisonment commencing on 14 June 2002, with a non-parole period of 11 months expiring on 13 May 2003
3. Direct the release of the respondent on 13 May 2003
4. Impose a condition on the parole order that the respondent be subject to supervision prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 during the period 14 May 2003 to 13 May 2005.

JUDGMENT:

- 11 -

IN THE COURT OF
CRIMINAL APPEAL

60379/02
Meagher JA
Sperling J
Greg James J
Tuesday, 1 October 2002

R v Brownlow

Judgment

Meagher JA: I agree with Sperling J.
Sperling J: This is a Crown appeal brought pursuant to s5D of the Criminal Appeal Act 1912 against a sentence imposed on the respondent, Peter Austin Brownlow, by O’Reilly DCJ on 14 June 2002. The respondent had pleaded guilty on 14 September 2001, at Penrith Local Court, to two counts of malicious wounding, being an offence against s35(a) of the Crimes Act 1900 for which the maximum penalty is seven years imprisonment. The respondent was thereupon committed for sentence to the District Court pursuant to s51A of the Justices Act 1902.
The respondent was sentenced on each count to 15 months imprisonment to date from 14 June 2002, with a non-parole period of five months, the sentences to be served concurrently.
The sentencing judge took into account a period of approximately three and a half weeks in custody before the respondent was released on bail.
His Honour also gave the respondent the benefit of a 25 per cent discount for the utilitarian value of the plea of guilty.
Section 5D of the Criminal Appeal Act 1912 provides that, on a Crown appeal, this court may, in its discretion, vary the sentence and impose such sentence as to the court may seem proper.
The principles relating to a Crown appeal are well settled. They include the following. The right of the Crown to appeal is an exceptional power, to be exercised rarely, and in order to allow the court to lay down sentencing principles. The appeal will only be allowed if the sentence is manifestly inadequate. This must amount to an error in the exercise of discretion by…

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 Brownlow

Details

AGLC: R v Brownlow [2002] NSWCCA 404
Case: [2002] NSWCCA 404
Decision Date: 3 October 2002

CaseChat Overview and Summary

In the case of R v Brownlow, the defendant was convicted of causing grievous bodily harm to the victim by stabbing him with a knife. The prosecution appealed the sentence imposed by the trial judge, arguing it was unduly lenient. The matter was heard in the High Court of Australia. The central issue before the court was whether the sentence imposed by the trial judge was manifestly inadequate, and thus warranted an intervention by the appellate court.

The court considered whether the trial judge had adequately taken into account the gravity of the offence and the need for general deterrence. The court noted that the offence involved a significant degree of violence and premeditation, with the defendant having deliberately chosen to use a knife in an attack on the victim. The court also considered the impact on the victim, who suffered serious physical and emotional harm as a result of the attack. The court found that the sentence imposed by the trial judge did not reflect the seriousness of the offence and failed to adequately address the need for general deterrence.

After considering the principles applicable to sentencing appeals, the court determined that the sentence was indeed manifestly inadequate. The court emphasised that while it was not appropriate to interfere with sentencing decisions unless there was a clear error of principle, in this case, the error was such that it warranted intervention. The court remitted the matter to the trial court for re-sentencing, with directions to ensure that the sentence reflected the gravity of the offence and the need for general deterrence. The court did not consider it necessary to provide further guidance on the principles of sentencing in this case, as the error was clear and the matter was suitable for re-sentencing rather than a full rehearing.

Orders