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 2008JUDGMENT 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 1912CASES 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 46PARTIES: 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
Wednesday 13 August 2008SPIGELMAN CJ
BARR J
FULLERTON J
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…
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- AGLC
- R v James Fryar [2008] NSWCCA 171
- Case
- [2008] NSWCCA 171
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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