Wood CJ at CL at 1; Studdert J at 75; Bell J at 76
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S) :
60328/01
LOWER COURT JUDICIAL OFFICER :
Mahoney DCJ
COUNSEL :
L M B Lamprati C Craigie SC
SOLICITORS:
S E O'Connor D J Humphreys
CATCHWORDS:
CRIMINAL LAW - appeals - Crown appeal against sentence - whether sentence manifestly lenient - common assault - assault of police officer occasioning actual bodily harm - kidnap - whether error of law in imposing a suspended sentence when respondent already subject to another sentence of imprisonment which had not been suspended - whether criminality involved could be appropriately dealt with by way of suspended sentence - whether objective seriousness of offence required accumulated sentence - subjective circumstances inappropriately outweighed objective criminality of the offence - double jeopardy and discretion - appeal allowed - necessary to re-sentence respondent and substitute further sentence of imprisonment.
1 WOOD CJ at CL: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act (NSW) 1912, in respect of sentences imposed by Mahoney DCJ in the Sydney District Court on 19 April 2001. On that occasion his Honour had two separate series of offences to deal with, each arising out of violence directed by the respondent towards his wife.
OFFENCES OF 3 AUGUST 1999
2 On this day the respondent assaulted his wife in the presence of their three year old daughter, by pushing her against a refrigerator, and by pursuing her into the bedroom, where he seized her by the head and pushed her to the floor. After throwing and kicking articles around the bedroom he left the premises. His wife and young daughter went to a friend's unit for safety. He arrived there an hour or so later and forced his way into the bedroom where she was hiding. He demanded that she return home and threatened to kill her. After a struggle he was ejected from the unit. However, he remained outside yelling for his wife to come out and banging on the door.
3 Police were called to deal with the situation. When he attempted to push past them, to get to his wife, attempts were made to arrest him. In the course of doing so, one of the officers involved, Constable Ian Ward, who was trying to handcuff him…
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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Details
AGLC
R v Edigarov [2001] NSWCCA 436
Case
[2001] NSWCCA 436
Decision Date
CaseChat Overview and Summary
In the case of R v Edigarov, the respondent was convicted of assaulting a police officer occasioning actual bodily harm, kidnapping, and other related charges. The Crown appealed against the sentence imposed by the lower court, arguing that it was manifestly lenient and that there was an error in the imposition of a suspended sentence. The matter was heard in the High Court of Australia.
The primary legal issues for the court to decide were whether the sentence imposed was manifestly lenient and whether there was an error of law in imposing a suspended sentence when the respondent was already serving another sentence of imprisonment. The court also needed to determine whether the criminality involved could be appropriately dealt with by way of a suspended sentence, and if the objective seriousness of the offence required an accumulated sentence. Additionally, the court examined the principles of double jeopardy and discretion in the context of sentencing.
The court found that the sentence imposed was manifestly lenient, particularly in light of the objective seriousness of the offences committed. The court held that there was an error of law in imposing a suspended sentence when the respondent was already serving another sentence of imprisonment. The court further determined that the criminality involved could not be appropriately dealt with by way of a suspended sentence and that the objective seriousness of the offence required an accumulated sentence. The court held that the subjective circumstances of the respondent were inappropriately outweighed against the objective criminality of the offence. The court also found that the principles of double jeopardy and discretion did not prevent the appeal from being heard and the sentence from being altered.
The High Court allowed the appeal and remitted the matter to the lower court for re-sentencing. The court substituted a further sentence of imprisonment for the offences committed by the respondent, taking into account the objective seriousness of the offences and the need for an accumulated sentence.