R v King - [1999] NSWCCA 251

CITATION: R v King [1999] NSWCCA 251

FILE NUMBER(S): CCA 60537/98

HEARING DATE(S): 18 August 1999

JUDGMENT DATE:
18 August 1999

PARTIES :

Matthew Anthony King
Regina (NSW)

JUDGMENT OF: Wood CJ at CL; Greg James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/11/0188; 98/11/0189

LOWER COURT JUDICIAL OFFICER: Mahoney DCJ

COUNSEL: S. Odgers
L. Lampratti

SOLICITORS: T.A. Murphy
S.E. O'Connor

CATCHWORDS:

DECISION: Leave to appeal granted. Sentence quashed. In lieu, for first offence asentenced toa fixed term of twelve months from 10/11/97 to expire on 9/11/98; for the second offence sentenced to a cumulative minimumterm of 15 months from 10/11/98 to 9/2/2000

IN THE COURT OF
CRIMINAL APPEAL
60537/98

WOOD CJ at CL
GREG JAMES J
WEDNESDAY 18 AUGUST 1999
REGINA v MATTHEW ANTHONY KING
JUDGMENT
1   WOOD CJ at CL: The applicant seeks leave to appeal in respect of a total sentence comprising a minimum term of three years with an additional term of six months imposed by Mahoney DCJ in the District Court on 24 June 1998. This sentence reflected two components:
(a) a minimum term of eighteen months and an additional term of six months for an offence of malicious wounding of which the applicant was convicted after trial;
(b) a minimum term of eighteen months cumulative upon the minimum term for the first offence, and an additional term of six months, for an offence of malicious infliction of grievous bodily harm to a separate victim.
2   Two offences of failure to appear, included in a Form 1, were taken into account.
3   The first offence in point of time, being that in respect of which the applicant was convicted at his trial, occurred in the course of a riot at Coogee Bay on New Year's Eve 1994, involving upwards of 100 people. The victim, Sonny Abberton, was in the thick of the fight which his Honour found involved two separate groups of males, elsewhere suggested to have been "surfies" and "skateboarders". The applicant was sentenced upon the basis that he struck Abberton once with a bottle on the spur of the moment "almost as a matter of self-defence" since his group was outnumbered, and at a time when he had consumed a significant amount of alcoholic liquor.
4   The second offence was connected with the first in the sense that on the following morning, three men, one of whom was Abberton's brother, burst into the home of the applicant's mother, armed with baseball bats and obviously intent on wreaking some sort of revenge. Police intervened to prevent any further violence on this occasion, but it was followed by a continuing history of confrontation over the next sixteen months between the two groups who had fought it out on the streets of Coogee Bay on New Year's Eve.
5   This came to a head on 6 April 1996 when Abberton and some associates arrived at premises that were being visited by the applicant and a friend, Allen McMullen. They were carrying removable…

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 King

Details

AGLC: R v King [1999] NSWCCA 251
Case: [1999] NSWCCA 251
Decision Date: 18 August 1999

CaseChat Overview and Summary

The Court of Criminal Appeal in New South Wales heard an appeal from Matthew Anthony King against his conviction and sentence imposed by the District Court. The applicant was convicted of two separate offences: malicious wounding and malicious infliction of grievous bodily harm, both of which occurred during a series of confrontations between two rival groups. The appeal was limited to the proportionality of the sentence imposed by Mahoney DCJ in the District Court, specifically the minimum and additional terms of imprisonment. The applicant had already served significant time in custody prior to sentencing, which was taken into account in the overall sentence.

The legal issues before the Court were whether the District Court judge erred in not finding special circumstances and whether the proportion between the minimum and additional terms of imprisonment was appropriate. The Court noted that while the overall term of the sentence was not challenged, the proportionality of the minimum and additional terms, as well as the failure to find special circumstances, were points of contention. The Court considered the nature of the offences, the applicant's prior criminal record, and his age at the time of sentencing. It also examined the psychological evaluation and the recommendation for supervision upon release.

The Court found that the District Court judge erred in not finding special circumstances, as the cumulative nature of the sentences and the applicant's significant psychological problems warranted such a finding. The Court also considered the principle of totality, which requires that the overall sentence should not be excessive. As a result, the Court granted leave to appeal, quashed the original sentence, and imposed a new sentence of a fixed term of twelve months for the first offence and a cumulative minimum term of fifteen months for the second offence, to be served consecutively. The Court took into account the time already served by the applicant in custody, resulting in an effective total minimum term of approximately three years and nine months and a total sentence of approximately four years and three months.

Orders