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R v James FRYAR

R v James FRYAR

Case [2008] NSWCCA 171 13 August 2008

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New South Wales
Court of Criminal Appeal

CITATION: R v James FRYAR [2008] NSWCCA 171

HEARING DATE(S): 8 July 2008

JUDGMENT DATE:
13 August 2008

JUDGMENT OF: Spigelman CJ at 1; Barr J at 2; Fullerton J at 3

DECISION: 1. The Crown appeal is allowed.
2. The sentence imposed in the District Court is quashed.
3. The respondent is sentenced to a term of imprisonment comprising a non-parole period of 6 years to date from 25 August 2006 and to expire 24 August 2012 with a balance of term of 3 years to expire on 24 August 2015.

CATCHWORDS: Crown appeal against inadequacy - one count malicious wounding with intent to cause grievous bodily harm - after trial - application of s 54B of Crimes Sentencing Procedure Act 1999 - identified errors in assessment of objective criminality - failure to find a matter of aggravation under s21A(2)(i) - overweighed matters of mitigation.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED: DB v R; DNN v R [2007] NSWCCA 27; 167 A Crim R 393
Mackey v R [2006] NSWCCA 254
R v Baker [2000] NSWCCA 85
R v Daetz; R v Wilson [2003] NSWCCA 216; 139 A Crim R 398
R v Mitchell; R v Gallagher [2007] NSWCCA 296
R v Nowak [2008] NSWCCA 89
R v Saleib [2005] NSWCCA 85
R v Way [2004] NSWCCA 131; 60 NSWLR 168
SZ v R [2007] NSWCCA 19; 168 A Crim R 249
Vragovic v R [2007] NSWCCA 46

PARTIES: The Crown (App)
James Fryar (Resp)

FILE NUMBER(S): CCA 2007/15487

COUNSEL: MG Sexton SC (App)
D Price (Resp)

SOLICITORS: Director of Public Prosecutions (App)
Conaghan Hunter Solicitors (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0266

LOWER COURT JUDICIAL OFFICER: Flannery DCJ

LOWER COURT DATE OF DECISION: 18 April 2008

2007/15487

SPIGELMAN CJ
BARR J
FULLERTON J
Wednesday 13 August 2008

R v JAMES FRYAR

Judgment

1 SPIGELMAN CJ: I agree with Fullerton J.

2 BARR J: I agree with Fullerton J.

3 FULLERTON J: This is an appeal by the Crown pursuant to s 5D of the Criminal Appeal Act 1912 against the inadequacy of the sentence imposed by her Honour Judge Flannery at the Sydney District Court on 18 April 2008. The sentence was imposed after trial.

4 On 19 November 2007 the respondent was indicted on two counts, cast in the alternative, arising out of an incident where the victim was stabbed in the back with a Stanley knife. The first count charged a wounding with intent to murder contrary to s 27 of the Crimes Act 1900 and the second count malicious wounding with intent to cause grievous bodily harm contrary to s 33 of the Crimes Act. The respondent offered to plead guilty to the offence constituted by s 35 of the Crimes Act as a statutory alternative to the second count. The Crown refused to accept 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 James FRYAR

Details

AGLC: R v James Fryar [2008] NSWCCA 171
Case: [2008] NSWCCA 171
Decision Date: 13 August 2008

CaseChat Overview and Summary

In the case of R v James Fryar, the Crown appealed against the sentence imposed by the District Court of New South Wales, which had convicted Fryar of one count of malicious wounding with intent to cause grievous bodily harm. The Crown contended that the sentence was inadequate and sought to have it reviewed by the higher court. The appeal centred on the application of section 54B of the Crimes (Sentencing Procedure) Act 1999, focusing on the District Court's assessment of the objective criminality of the offence and its consideration of aggravating and mitigating factors.

The primary legal issues before the court were whether the District Court had erred in its assessment of the objective criminality and whether it had correctly identified and weighed the matters of aggravation and mitigation in arriving at the sentence. The Crown argued that the District Court had overlooked significant aggravating factors and had disproportionately considered the mitigating factors, resulting in an unduly lenient sentence.

The court examined the District Court's reasoning and the factors it had considered in determining the sentence. It found that the District Court had indeed erred in its assessment of the objective criminality by not fully appreciating the severity of the offence. Additionally, the court identified that the District Court had failed to properly identify a matter of aggravation under section 21A(2)(i) of the Act and had overweighed the matters of mitigation. As a result, the sentence imposed was deemed inadequate, and the appeal was allowed. The case was remitted to the District Court for re-sentencing, with directions to appropriately consider the objective criminality and the relevant aggravating and mitigating factors.

Orders