R v Dudko - [2000] NSWCCA 336

CITATION: Regina v Lockyer [2000] NSWCCA 336

FILE NUMBER(S): CCA 060455/99

HEARING DATE(S): 14/07/2000

JUDGMENT DATE:
14 July 2000

PARTIES :

Regina
Warren Lockyer

JUDGMENT OF: Adams J at 1; Bell J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 981/0295

LOWER COURT JUDICIAL
OFFICER : Goldring DCJ

COUNSEL : WG Dawe QC - Crown
PM Winch - Applicant

SOLICITORS: SE O'Connor
TA Murphy - Applicant

LEGISLATION CITED: Crimes Act, 1900
Criminal Procedure Act, 1986

CASES CITED:
Lowe v The Queen (1984) 154 CLR 606;
Regina v Hodges (unreported) NSWCCA 20 August, 1997
Steele (unreported) NSWCCA) 17 April, 1997
Diamond (unreported) NSWCCA 18 February, 1993

DECISION: Application for leave to appeal granted; appeal allowed.

IN THE COURT OF
CRIMINAL APPEAL

60455/99

ADAMS J
BELL J

Friday, 14 July, 2000

REGINA v Warren LOCKYER

JUDGMENT
1    ADAMS J: I will ask Justice Bell to give the first judgment of the Court.
2 BELL J: The applicant, Warren Anthony Lockyer, seeks leave to appeal against the severity of a sentence imposed on him following his plea of guilty to a charge of assault occasioning actual bodily harm. This is an offence provided for in s 59 of the Crimes Act, 1900 (“the Act”) and carries a potential maximum of five years imprisonment. At the date upon which he appeared for sentence, this was a Table 2 offence for the purposes of s 33C(2) of the Criminal Procedure Act, 1986 and as such was an offence to be dealt with summarily unless an election was made by the prosecuting authority to proceed upon indictment.
3 The applicant was sentenced before the District Court in Wollongong to a term of two years imprisonment, to date from 17 April 1999 and to expire upon 16 April 2001. An additional term of eight months was specified. It is to be noted that the applicant invited the sentencing judge to take into account three matters on a Form 1 pursuant to s 21 of the Criminal Procedure Act (as it then stood). These were a charge involving the possession of a small quantity of cannabis, the possession of a small quantity of heroin and goods in custody, being a sum of cash.
4    The facts were as outlined by the sentencing judge in the course of his reasons, given on 23 July 1999. The circumstances of the assault on the victim, Christopher Murray, were that the applicant, together with a co-accused, Daniel Lowe, went to Mr Murray's residence and there engaged in what his Honour described as a very unprovoked and particularly vicious attack on Mr Murray, in which both of the offenders used weapons. In the case of the applicant, a piece of wood was used. He struck the victim about the left side of the head in the region of the temple with it. The victim was assaulted both inside his dwelling house and subsequently in the backyard of his premises.
5    The offence occurred on 24 September 1998. 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 Dudko

Details

AGLC: R v Dudko [2000] NSWCCA 336
Case: [2000] NSWCCA 336
Decision Date: 14 July 2000

CaseChat Overview and Summary

In the Court of Criminal Appeal, the applicant, Warren Anthony Lockyer, appealed against the severity of a sentence imposed on him following his plea of guilty to a charge of assault occasioning actual bodily harm. The legal issue before the court was whether the sentencing judge failed to consider the principles of parity in sentencing in light of the disposition of the proceedings involving the co-accused, Daniel Lowe. The court found that the disparity in sentences was significant enough to warrant the exercise of resentencing the applicant. The applicant was sentenced to a term of two years imprisonment, while his co-accused, Lowe, was sentenced to a fixed term of imprisonment of six months. The court found that the applicant's culpability was greater than that of Lowe, as he struck the first blow and wielded a block of wood resembling a table leg, striking the victim on his temple. The court proposed a sentence of one year and eight months, with a non-parole period of fifteen months. The applicant's appeal was allowed, and the sentence imposed in the District Court was quashed.

Orders