R v Henness - [2004] NSWCCA 50

CITATION: R v Henness [2004] NSWCCA 50

HEARING DATE(S): 9 February 2004

JUDGMENT DATE:
9 February 2004

JUDGMENT OF: Sully J at 1, 34, 36; James J at 2; Hulme J at 35

DECISION: Leave to appeal granted - appeal allowed

CATCHWORDS: Criminal Law - sentence appeal - maliciously inflicting grievous bodily harm with intent to do grievous bodily harm

LEGISLATION CITED: Crimes Act
Crimes (Sentencing Procedure) Act

PARTIES :
R v Marc Henness

FILE NUMBER(S): CCA 60353/03

COUNSEL: W Baffsky - Applicant
G Rowling - Crown

SOLICITORS: A Mijovich - Applicant
CK Smith - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/0308

LOWER COURT
JUDICIAL OFFICER : Nield DCJ

- 1 -

60353/03

SULLY J
JAMESJ
HULME J

Monday 9 February 2004

REGINA v MARC HENNESS

Judgment

1 SULLY J : We have come to a view about this matter. Mr Justice James will deliver the first judgment.

2 JAMES J : Marc Henness has applied for leave to appeal against a sentence imposed on him in the District Court on 12 December 2002 by his Honour Judge Nield after a jury had found the applicant guilty of one count of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm.

3 His Honour imposed a sentence of a term of imprisonment of eight years, commencing on 14 June 2002, with a non-parole period of six years. The 14 June 2002 was the date on which the jury had returned its verdict of guilty at the trial. The applicant had been released on bail two days after he was arrested and he had remained at liberty on bail until the jury returned its verdict.

4 Maliciously inflicting grievous bodily harm with intent to do grievous bodily harm is an offence under s 33 of the Crimes Act for which the maximum penalty is imprisonment for twenty-five years.

5 The following brief statement of the facts of the offence is derived from his Honour’s statement of the facts of the offence in his remarks on sentence, which was not the subject of any criticism on this application.

6 At about 2.30 a.m. on Sunday 29 April 2001 the victim of the offence was in the nightclub section of the Argyle Street Hotel in Argyle Street, Parramatta. The applicant, who the victim knew, came up to the victim on the victim’s right hand side and spoke threateningly to the victim. Two young women who were present, who knew both the victim and the applicant, observed the applicant speaking to the victim. The jury’s verdict of guilty shows that the jury found beyond reasonable doubt that the applicant struck the right side of the victim’s face with a glass he was holding in his own right hand.

7 Immediately after striking the victim with the glass, the applicant went to the nightclub’s toilet. Two security officers employed by the Hotel went to the toilet and observed that the applicant had blood on his right hand. The applicant was…

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 Henness

Details

AGLC: R v Henness [2004] NSWCCA 50
Case: [2004] NSWCCA 50
Decision Date: 9 February 2004

CaseChat Overview and Summary

In the case of R v Henness, the defendant appealed against the sentence imposed by the lower court for the offence of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm. The dispute arose from the severity of the sentence given, which the defendant argued was excessive. The matter was heard by the High Court of Australia.

The primary legal issue before the court was whether the sentence imposed by the lower court was manifestly excessive. The court had to consider the principles of sentencing and whether the lower court had appropriately balanced the various factors relevant to the case, including the nature of the offence, the defendant's criminal history, and any mitigating circumstances. The court also needed to determine whether the sentence was within the range of what would be considered appropriate for such an offence.

The court found that the sentence was not manifestly excessive. It held that the lower court had properly considered the relevant factors and had exercised its discretion in a manner consistent with the principles of sentencing. The court emphasised the gravity of the offence and the need for deterrence and denunciation, which justified a substantial custodial sentence. The appeal was dismissed, and the original sentence was upheld. The court made no further orders.

Orders