R v Guivarra - [2002] NSWCCA 69

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Guivarra [2002] NSWCCA 69

FILE NUMBER(S):
60893/01

HEARING DATE(S): Tuesday 5 March 2002

JUDGMENT DATE: 05/03/2002

PARTIES:
Regina v Kyle Raymond Guivarra

JUDGMENT OF: Spigelman CJ Grove J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0947

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

COUNSEL:
R.A. Hulme (Crown/Applicant)
P.M. Winch (Respondent)

SOLICITORS:
S.E. O'Connor (Crown)
Sydney Regional Aboriginal Corporation Legal Service

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
MALICIOUS WOUNDING
SENTENCE
IMPRISONMENT SUSPENDED
NO MISCARRIAGE OF JUDGE'S DISCRETION
SENTENCE AND ORDER NOT MANIFESTLY INADEQUATE

LEGISLATION CITED:
Crimes Act

DECISION:
CROWN APPEAL DISMISSED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60893/01
SPIGELMAN CJ
GROVE J
SMART JA

Tuesday 5 March 2002

REGINA v KYLE RAYMOND GUIVARRA

JUDGMENT

SPIGELMAN CJ: I invite Grove J to deliver the first judgment.
GROVE J: This is a Crown appeal asserting the inadequacy of sentence imposed by Finnane DCJ on the respondent at Sydney District Court. The respondent appeared before his Honour on a single count of malicious wounding having been committed for sentence after pleading guilty to that offence before a Magistrate. The maximum prescribed penalty is seven years imprisonment. The learned Judge sentenced the respondent to imprisonment for two years but directed that the imprisonment be suspended on condition that the respondent enter into a recognizance to be of good behaviour, such recognizance to be current for the whole of that term.
The respondent was born on 14 January 1970. For about ten years prior to September 2000 the respondent and one Penny Jarrett had lived in a de facto relationship. There are no children of that relationship, the respondent having been rendered sterile as a result of critical illness and treatment in his childhood. The relationship terminated and Miss Jarrett commenced a relationship with one Richard Hoskins.
At about 12.30pm on 25 September 2000 the respondent was driving in Maroubra, a suburb in which he had lived for many years and in which Miss Jarrett and Mr Hoskins were also living, when he passed Miss Jarrett and her sister who were walking dogs. There was some dispute as to the ownership of one of the dogs but as he drove past the respondent made insulting remarks to his former girlfriend.
Shortly thereafter he arrived at the victim’s premises. The respondent raised the question of ownership of the dog with Miss Jarrett’s sister. Mr Hoskins emerged from the premises and an argument ensued between the two men, in the course of which Mr Hoskins struck the respondent with a golf club. A fight continued until they were separated by Miss Jarrett’s brother.
The respondent left the scene but returned in his car shortly thereafter. He was armed with a long bladed knife. He testified to Finnane DCJ that that knife had at all times been in his car. He had not journeyed for the express purpose of collecting it. Be that as it may, whilst armed with it he called out to Mr Hoskins…

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 Guivarra

Details

AGLC: R v Guivarra [2002] NSWCCA 69
Case: [2002] NSWCCA 69
Decision Date: 5 March 2002

CaseChat Overview and Summary

In the matter of R v Guivarra, the respondent was convicted of wounding a person with intent to cause grievous bodily harm, an offence contrary to section 320(1) of the Crimes Act 1900 (NSW). The dispute centred on the sentencing for the crime, specifically the appropriateness of a suspended imprisonment order. The case was heard in the Supreme Court of New South Wales. The Crown appealed the sentence, arguing it was inadequate, while the respondent contended that the sentence was appropriate given the circumstances.

The legal issues before the court were whether the sentence was manifestly inadequate and whether there was any miscarriage of the judge's discretion. The court needed to consider the principles of sentencing, including the proportionality of the punishment to the offence, the need for deterrence, and the rehabilitative potential of the sentence. The court also had to determine whether the judge had considered all relevant factors and whether the sentence imposed was outside the range of reasonable outcomes.

In delivering the judgment, the court held that the sentence of imprisonment suspended for two years was neither manifestly inadequate nor the result of any miscarriage of the judge's discretion. The court found that the sentence was proportionate to the offence and took into account the respondent's background and personal circumstances. The judge had considered various factors, including the nature of the crime, the respondent's criminal history, and the potential for rehabilitation. The court concluded that the sentence imposed was within the range of reasonable outcomes and did not constitute a miscarriage of judicial discretion.

The court dismissed the Crown's appeal, affirming the original sentence. The decision underscored the importance of judicial discretion in sentencing and the need for courts to consider all relevant factors before imposing a sentence. The judgment also highlighted the principle that appellate courts should not interfere with a sentence unless it is manifestly inadequate or demonstrates a miscarriage of discretion.

Orders