R v Drew - [2000] NSWCCA 384

CITATION: Regina v Drew [2000] NSWCCA 384

FILE NUMBER(S): CCA 60437/97

HEARING DATE(S): 4/8/00

JUDGMENT DATE:
4 August 2000

PARTIES :

The Crown
Clarence Drew (Appl)

JUDGMENT OF: Newman J at 1; Sperling J at 27

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 96/51/0115

LOWER COURT JUDICIAL
OFFICER : Ducker DCJ

COUNSEL : C K Maxwell QC (Crown)
G F Jauncey (Appl)

SOLICITORS: S E O'Connor (Crown)
Peter Murphy (Appl)

LEGISLATION CITED: Crimes Act 1900

CASES CITED:
R v Fernando 76 A Crim R 58
R v Hickey, unreported, CCA, 27 September 1994

DECISION: Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60437/97

NEWMAN J
SPERLING J

FRIDAY, 4 AUGUST 2000

REGINA v Clarence DREW

JUDGMENT

1    NEWMAN J: This is a very sad matter arising, as it does, as Mr Jauncey of counsel has rightly submitted this morning, from a background of deprivation.
2 The applicant, Clarence Drew, pleaded guilty before Ducker DCJ at Lismore to a charge of maliciously wound with intent to do grievous bodily harm contrary to s 33 of the Crimes Act 1900. That section provides a maximum penalty of penal servitude for 25 years; plainly enough, a crime standing high in the criminal calendar.
3    The applicant had in fact been indicted before his Honour on a count of wound with intent to murder but the Crown accepted his plea to the charge of maliciously wound with intent to do grievous bodily harm in full satisfaction of the indictment.
4    In the event, his Honour imposed a head sentence of ten and a half years constructed as to a minimum term of seven years and an additional term of three years and six months.
5    The applicant relies upon a single submission; namely, that his Honour's sentence was manifestly excessive.
6    I turn then to the objective features of the matter. As I said at the outset of these reasons, the background to the matter is one of extreme deprivation. The victim, one Allan Williams, was at the relevant time the administrator of the Bogan Lands Council. Within the ambit of authority of the Bogan Lands Council is a settlement known as Box Ridge.
7    Relatives of the applicant reside at Box Ridge. As I understand the matter, the applicant at the relevant time was not so resident. However, there is no doubt that there were persons at Box Ridge who were both related to and close to the applicant in the matter.
8    His Honour observed on the evidence that bad blood had been part of the mores of the inhabitants of the Box Ridge settlement principally because those who held power on the Bogan Lands Council would distribute, as rightly described this morning by Mr Jauncey, the meagre funds available to those who were either related or close to them, to the obvious disadvantage of those who did not fall within that circle.
9    It was against this background that the crime in question was committed. That the crime…

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 Drew

Details

AGLC: R v Drew [2000] NSWCCA 384
Case: [2000] NSWCCA 384
Decision Date: 4 August 2000

CaseChat Overview and Summary

Clarence Drew was convicted by Ducker DCJ at the Lismore District Court of maliciously wounding with intent to do grievous bodily harm, contrary to section 33 of the Crimes Act 1900. Drew, together with four others, attacked Allan Williams, the administrator of the Bogan Lands Council, with various weapons, including a machete. The attack was premeditated and resulted in serious injuries to Williams. Drew was sentenced to ten and a half years imprisonment, with a minimum term of seven years. Drew appealed against the sentence on the basis that it was manifestly excessive.

The Court of Criminal Appeal considered whether the District Court judge had erred in imposing the sentence. The Court noted the objective features of the crime, including the premeditated nature of the attack, the use of dangerous weapons, and the serious injuries inflicted on the victim. The Court also considered the subjective features of Drew, including his extensive criminal history and the background of deprivation in the Aboriginal community from which he came. However, the Court found that the District Court judge had properly balanced the aggravating and mitigating factors and had imposed a sentence that was appropriate for the seriousness of the crime.

The Court of Criminal Appeal dismissed the appeal against sentence, finding that the District Court judge had not erred in imposing the sentence. The Court noted that the attack was premeditated and carried out with dangerous weapons, resulting in serious injuries to the victim. The Court also noted that Drew had a history of violent offending and that the mitigating factors of his background and deprivation did not outweigh the seriousness of the crime.

The Court of Criminal Appeal dismissed the appeal against sentence, upholding the sentence imposed by the District Court.

Orders