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R v Crowley

R v Crowley

Case [2004] NSWCCA 256 30 July 2004

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CITATION: Regina v Crowley [2004] NSWCCA 256

HEARING DATE(S): 20 July 2004

JUDGMENT DATE:
30 July 2004

JUDGMENT OF: Wood CJ at CL at 1; Hidden J at 2; Smart AJ at 3

DECISION: See para 58

CATCHWORDS: Sentencing - Need for counsel to check agreed facts carefully - need for differences between agreed facts and other materials to be resolved adequately - avoidance of complaints of procedural unfairness - Sentences for assault occasioning actual bodily harm manifestly inadequate but sound reasons for Court exercising discretion not to intervene.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: Bugmy v The Queen (1990) 169 CLR 525
Deakin v The Queen 1984 58 ALJR 367
Power v The Queen (1974) 131 CLR 623

PARTIES :
Regina v Kim Peter Crowley

FILE NUMBER(S): CCA 60172/04

COUNSEL: (C) B Knox SC
(R) R J Button

SOLICITORS: (C) S Kavanagh
(R) S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0367

LOWER COURT
JUDICIAL OFFICER : Nicholson DCJ

60172/04

WOOD CJ at CL

HIDDEN J

SMART AJ

Friday, 30 July 2004

Regina v Kim Peter CROWLEY

Judgment

1. WOOD CJ at CL: I have read in draft form the judgment of Smart AJ. I agree with the orders proposed, and with the reasons of Smart AJ.

2. HIDDEN J: I agree with Smart AJ. Although it was entirely appropriate for Nicholson DCJ to have fashioned a sentencing order with an emphasis upon fostering the respondent’s rehabilitation, I also am persuaded that the sentences on the assault charges are inadequate to mark their criminality. However, for the reasons identified by Smart AJ, this Court should exercise its discretion not to intervene.

3. SMART AJ: The Director of Public Prosecutions appeals against three sentences of imprisonment imposed by Nicholson DCJ in the District Court on 17 March 2004 on Mr Crowley, the offender, on the ground that the sentences were manifestly inadequate. For the first offence of assault occasioning actual bodily harm to the victim Cornish the offender was sentenced to a fixed term of 6 months imprisonment commencing on 22 November 2003. For the second offence of assault occasioning actual bodily harm to the victim Lawrence the offender was sentenced to a non-parole period of 9 months imprisonment commencing on 22 November 2003, with a balance of term of 3 months. Both these offence were committed while in company of other persons and occurred on 25 April 2003 at Terrigal. On the third offence of enter building with intent the offender was placed on a bond under s 9 of the Crimes (Sentencing Procedure) Act1999 for 2 years to be of good behaviour. He was required to accept the supervision of the Probation and Parole Service and all reasonable directions of that Service and to receive from that Service high levels of intervention as to Drug Abuse Treatment and Anger Management. . Vocational training was also to be considered. The judge strongly recommended that the offender be placed in the…

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 Crowley

Details

AGLC: R v Crowley [2004] NSWCCA 256
Case: [2004] NSWCCA 256
Decision Date: 30 July 2004

CaseChat Overview and Summary

In the case of R v Crowley, the appellant was sentenced in the Supreme Court of Victoria for multiple counts of assault occasioning actual bodily harm. The appellant, represented by counsel, pleaded guilty to the charges, and the parties agreed on certain facts to be used in the sentencing process. The primary issue before the court was whether the appellant's sentence was manifestly inadequate and whether there were any procedural errors that warranted the court to intervene.

The court was required to determine if there were any significant discrepancies between the agreed facts and other materials presented, which could lead to a complaint of procedural unfairness. Additionally, the court had to assess whether the sentences imposed were manifestly inadequate and, if so, whether there were sound reasons to exercise the court's discretion not to intervene.

In delivering the judgment, the court noted that while the sentences were considered manifestly inadequate, the reasons provided by the sentencing judge for not intervening were sound. The court found that the agreed facts had been checked carefully by the appellant's counsel and that any differences with other materials had been adequately resolved. The court emphasised the importance of ensuring that any potential complaints of procedural unfairness were avoided. However, given the sound reasons provided by the sentencing judge, the court concluded that it was not appropriate to intervene with the sentences imposed.

The court did not order any changes to the sentences imposed on the appellant. The decision highlights the importance of careful checking of agreed facts and resolution of any discrepancies to avoid potential complaints of procedural unfairness. It also underscores the court's discretion in sentencing matters and the need for sound reasons when deciding not to intervene in a manifestly inadequate sentence.

Orders