CATCHWORDS:
appeal against severity of sentence
maliciously inflicting grievous bodily harm whilst in company
plea of guilty
special circumstances and reduction in non-parole period
favourable subjective circumstances of applicant
subjective factors giving rise to the offence
principles of parity in sentencing co-offenders
co-offender charged with less serius offence
whether parity considerations in sentencing apply to disparities in charging process
whether sentence imposed was manifestly excessive
planned, unprovoked and vicious offence

LEGISLATION CITED:
Crimes Act 1900, s35(2)
Crimes (Sentencing Procedure) Act 1999, s44(2)

DECISION:
Leave to appeal granted; appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1172
McCLELLAN CJ at CL
SIMPSON J
HOEBEN J
Thursday 27 October 2005

Steven FORMOSA v REGINA

Judgment

SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him in the District Court on 14 December 2004 following plea of guilty to a charge of maliciously inflicting grievous bodily harm whilst in company. Pursuant to s35(2) of the Crimes Act 1900 the offence carries a maximum penalty of imprisonment for ten years. Viney ADCJ sentenced the applicant to imprisonment for four years with a non-parole period of eighteen months. In so structuring the sentence his Honour found special circumstances within the meaning of s44(2) of the Crimes (Sentencing Procedure) Act 1999 (as it then stood) justifying departure from the statutory ratio for which that subsection provides. The variation made was a very substantial one. The non-parole period imposed was half what it would have been absent the finding of special circumstances.
facts
The offence was committed in the early hours of 11 January 2003. During the evening of 10 January, in company with another person (Colin Wood) the applicant travelled from his home in Tuggerah Lakes to an address in South Penrith. The premises to which they travelled are located in an industrial site and consisted of an automotive engineering workshop above which is a residential unit. The residential unit was occupied by Wood’s sister, Belinda Wood, and the victim of the offence, Patrick Parry. The business was owned by Mr Parry’s father and operated by Mr Parry.
On route the applicant and Wood met another person, who has not been identified, but who accompanied them to the premises. The three men arrived at about 1.20 am on 11 January. Mr Parry and Ms Wood were asleep in the unit. Colin Wood banged on the door until Mr Parry awoke. Seeing only Colin Wood, whom he knew, Mr Parry let him in. Colin Wood went upstairs to speak to…

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 Formosa

Details

AGLC: R v Formosa [2005] NSWCCA 363
Case: [2005] NSWCCA 363
Decision Date: 27 October 2005

CaseChat Overview and Summary

In the matter of R v Formosa, the respondent, Formosa, appealed against the severity of the sentence imposed upon him. The case was heard in the Court of Appeal, where Formosa argued that the sentence was manifestly excessive and did not reflect the favourable subjective circumstances of his case. The appeal was specifically directed at the sentence imposed for the offence of maliciously inflicting grievous bodily harm while in the company of another individual, for which Formosa had pleaded guilty. The primary legal issue before the Court of Appeal was whether the sentence imposed was manifestly excessive, taking into account the principles of parity in sentencing co-offenders and the subjective factors that gave rise to the offence.

The Court of Appeal considered the principles of parity in sentencing, which require that co-offenders be treated equally in terms of their sentences. However, the Court noted that these principles do not necessarily apply to disparities in the charging process. In this case, Formosa's co-offender had been charged with a less serious offence, and the Court was required to determine whether this disparity should impact the severity of Formosa's sentence. The Court further considered the subjective factors that gave rise to the offence, including the planned, unprovoked, and vicious nature of the attack. Formosa argued that these factors, along with his favourable subjective circumstances, warranted a reduction in his non-parole period.

The Court of Appeal held that while the offence was indeed serious, the sentence imposed was not manifestly excessive. The Court found that the sentencing judge had appropriately considered the principles of parity in sentencing, the subjective factors giving rise to the offence, and Formosa's favourable subjective circumstances. The Court of Appeal ultimately dismissed the appeal, affirming the sentence imposed by the trial judge.

Orders