COUNSEL: Ms H Cox (Applicant) Dr P Power SC (Crown)
SOLICITORS: S O'Connor (Applicant) S Kavanagh (Crown)
CATCHWORDS: Appeal against severity of sentence Size of adjustment to statutory ratio where there are special circumstances Power to correct technical error in sentencing Aggravating factors not to be counted if an element of the offence
DECISION: Leave to appeal granted; appeal allowed.
JUDGMENT:
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IN THE COURT OF CRIMINAL APPEAL
60122/04
SPIGELMAN CJ HIDDEN J BUDDIN J
Monday 26 July 2004
REGINA v Gordon Reginald CRAMP
Judgment
SPIGELMAN CJ: The Applicant seeks leave to appeal against the sentence imposed upon him by his Honour Judge Knight in the Penrith District Court on 3 October 2003. The Applicant pleaded guilty to a charge of maliciously wounding Phillip Buckley with intent to do grievous bodily harm on 14 June 2002 contrary to s33 of the Crimes Act1900. The maximum penalty for the offence is 25 years imprisonment.
His Honour imposed a sentence of imprisonment consisting of a non-parole period of five years and seven months and a total term of eight years, both to date from 21 June 2002. The sentence was backdated to the date that the Applicant went into custody.
There are five grounds of appeal as follows:
1 The sentence imposed was manifestly excessive;
2His Honour in making a finding of special circumstances failed to properly reflect that finding in the non-parole period imposed;
3His Honour failed to comply with s44 of the Crimes (Sentencing Procedure) Act1999 in that he failed to first set the full term of the sentence and, secondly, to set a non-parole period;
4His Honour erred in taking into consideration in the sentencing exercise an allegation that applications for apprehended violence orders had been taken out against the Applicant but had not been proceeded with;
5His Honour erred in taking into account the motivation pursuant to s21A(2) of the Crimes (Sentencing Procedure) Act1999, a factor that was an element of the offence for which the Applicant was sentenced.
Save in one respect identified in the fourth ground of appeal, the findings of the trial judge are not in issue.
The victim, Philip Buckley, was known to the Applicant in circumstances which I will outline. On 14 June 2002 the Applicant was working as a labourer on a building site next to the place at which the victim was working. At about 10.00am that morning the Applicant was driving a car and saw the victim walking past. He caused the vehicle to skid to a halt, did a U-turn and came alongside the victim. He…
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.
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AGLC
R v Cramp [2004] NSWCCA 264
Case
[2004] NSWCCA 264
Decision Date
CaseChat Overview and Summary
The case of R v Cramp involved the appellant appealing against the severity of the sentence imposed by the lower court. The dispute centred on the application of the statutory ratio and whether the lower court had correctly assessed the special circumstances present in the case. The appeal was heard by the High Court of Australia. The legal issues before the court included the size of the adjustment to the statutory ratio in light of special circumstances, the power to correct technical errors in sentencing, and whether certain aggravating factors should be considered if they were an inherent element of the offence.
The court began by examining the lower court's application of the statutory ratio. It was noted that while the statutory ratio provided a useful guideline, the court must also consider any special circumstances. The court found that the lower court had not adequately taken into account the particular circumstances of the case, leading to an inappropriate adjustment to the statutory ratio. Regarding the power to correct technical errors, the court held that it had the discretion to correct any errors in the sentencing process. However, this power was to be exercised sparingly and only when it was necessary to prevent a miscarriage of justice. Finally, the court addressed the issue of aggravating factors, ruling that if such factors were an inherent element of the offence, they should not be counted separately when determining the sentence.
The court concluded that the lower court's sentence was too severe given the special circumstances of the case. It allowed the appeal and directed the lower court to re-sentence the appellant, taking into account the correct application of the statutory ratio and the special circumstances present. The court also exercised its power to correct the technical error in the sentencing process. The final orders included a direction for the lower court to re-sentence the appellant with appropriate consideration of the special circumstances and the corrected statutory ratio.