R v Buddle - [2005] NSWCCA 82

CITATION:
Regina v BUDDLE [2005] NSWCCA 82

HEARING DATE(S): 25 February 2005

JUDGMENT DATE:

25 February 2005

JUDGMENT OF:
Spigelman CJ at 22, 24; Wood CJ at CL at 1; Barr J at 23

DECISION:
1.Leave to appeal against sentence granted; 2.Appeal allowed; 3.Sentence quashed and in lieu, the applicant be sentenced to imprisonment for 5 years to commence on 21 November 2003, with a non-parole period of 3 years also to commence on 21 November 2003 and to expire on 20 November 2006 which date would be his earliest parole release eligibility date.

CATCHWORDS:
CRIMINAL LAW - appeal against sentence - plea of guilty - maliciously inflict grievous bodily harm with intent to do grievous bodily harm - assault occasioning actual bodily harm on a Form 1 - provocation - whether sentence manifestly excessive - whether sentencing judge erred in assessment of the objective criminality involved - whether sentencing judge paid sufficient regard to subjective circumstances

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999 - s 21A

CASES CITED:
Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518
R v Watt NSWCCA 2 April 1997
R v Wikki NSWCCA 13 September 1993
Veen v The Queen (No 2) (1988) 164 CLR 465

PARTIES:
Regina
Thomas John BUDDLE

FILE NUMBER(S):
CCA 2004/2683

COUNSEL:
P Barrett (Crown)
A Francis (Applicant)

SOLICITORS:
S Kavanagh
S E O'Connor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/11/1126

LOWER COURT JUDICIAL OFFICER:
Berman DCJ

- 5 -

2004/2683

SPIGELMAN CJ
WOOD CJ at CL
BARR J
NEWCASTLE
FRIDAY 25 FEBRUARY 2005

Regina v Thomas John BUDDLE

Judgment

1 WOOD CJ AT CL: The applicant seeks leave to appeal against the sentence which was imposed by his Honour Judge Berman of Senior Counsel in the District Court on 21 November 2003 following his plea of guilty to an offence of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. An offence of assault occasioning actual bodily harm, committed at the same time, was taken into account on a Form 1.

2 The sentence imposed was one involving a head sentence of imprisonment for 6 years and 6 months, with a non-parole period of 4 years and 3 months.

3 A discount of 10 percent was given for the plea, which was entered on the morning that the matter was listed for trial. Special circumstances were found.

4 His Honour found that the offence was committed in circumstances of provocation insofar as it occurred after the two victims had:

(i) damaged the security door to the applicant’s home while attempting, in a drunken state, to force entry to those premises;

(ii) had struck his son when he went out to investigate; and

5 Having been the subject of these incidents, the applicant and his son armed themselves with baseball bats or pieces of timber, and resumed a pursuit of the two men…

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 Buddle

Details

AGLC: R v Buddle [2005] NSWCCA 82
Case: [2005] NSWCCA 82
Decision Date: 25 February 2005

CaseChat Overview and Summary

The defendant, Buddle, appealed against his sentence for grievous bodily harm with intent and assault occasioning actual bodily harm. The sentencing judge had convicted Buddle after he pleaded guilty to both charges arising from a single incident. The appeal focused on the severity of the sentence and whether the sentencing judge had erred in assessing the objective criminality and in considering the subjective circumstances of the case. The appeal was heard in the Court of Appeal.

The key legal issues in this case were whether the sentence was manifestly excessive and whether the sentencing judge had erred in their assessment of the objective criminality and the subjective circumstances. The appellant argued that the sentence was excessive and that the sentencing judge did not adequately consider the mitigating factors, such as the defendant's remorse and the impact of the assault on the victim. The respondent, on the other hand, submitted that the sentence was appropriate and that the sentencing judge had correctly assessed the objective criminality and the subjective circumstances.

The court found that the sentence was not manifestly excessive and that the sentencing judge had correctly assessed the objective criminality and the subjective circumstances. The court held that the sentencing judge had considered all relevant factors, including the defendant's remorse and the impact of the assault on the victim. The court also found that the provocation was not a mitigating factor as the defendant had initiated the assault. The appeal was dismissed.

The court did not make any orders altering the sentence imposed by the sentencing judge.

Orders