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R v Mumberson

R v Mumberson

Case [2011] NSWCCA 54 8 April 2011

Sentencing

Recklessly Inflicting Grievous Bodily Harm

Standard Non-Parole Period

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Darren MUMBERSON [2011] NSWCCA 54
Hearing dates: 4 March 2011
Decision date: 08 April 2011
Before: Hodgson JA at 1; Adams J at 47; Hall J at 48
Decision:
(1) Appeal allowed.
(2) Sentence below quashed.
(3) In lieu thereof, the respondent is sentenced to a non-parole period of fifteen months imprisonment commencing on 8 October 2010 and expiring on 7 January 2012, and a balance of term of one year, expiring on 7 January 2013.
(4) The respondent is to be released on parole on 7 January 2012.

Catchwords: CRIMINAL LAW - Sentencing - Crown appeal - Offence of recklessly inflicting grievous bodily harm - Sentence of one year eight months, suspended - Whether insufficient regard to standard non-parole period - Whether too much weight given to subjective features - Whether sentence manifestly inadequate - Crown appeal allowed.
Legislation Cited: Criminal Appeal Act 1912 s 5D, s 14A
Crimes Act 1900 s 35
Crimes (Sentencing Procedure) Act 1999 s 12, s 21A, s 47
Cases Cited: R v Borkowski [2009] NSWCCA 102; (2009) 52 MVR 528
Carroll v The Queen [2009] HCA 13
R v Cheh [2009] NSWCCA 134
R v Chisari [2006] NSWCCA 19
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
R v Farrawell-Smith [2010] NSWCCA 144
R v Foster [2001] NSWCCA 215; (2001) 33 MVR 565
Hamilton v R (1993) 66 A Crim R 575
House v The King (1936) 55 CLR 499
R v JCE [2000] NSWCCA 498; (2000) 120 A Crim R 18
R v JW [2010] NSWCCA 49
R v McEvoy [2010] NSWCCA 110
Mulato v R [2006] NSWCCA 282
R v Tory [2006] NSWCCA 18
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Zamagias [2002] NSWCCA 17
Category: Principal judgment
Parties: CROWN (appellant)
Darren MUMBERSON (respondent)
Representation: Counsel:
J PICKERING (Crown)
W ROSER SC/ M GALLAGHER (respondent)
Solicitors:
S Kavanagh, Solicitor for Public Prosecutions (Crown)
Matthew Dooley and Gibson Solicitors (respondent)

File Number(s): 2009/184038
Decision under appeal

Date of Decision:

2010-10-08 00:00:00

Before:

Moore ADCJ

File Number(s):

2009/184038

Judgment

HODGSON JA: On 9 August 2010, the respondent Darren Mumberson pleaded guilty before Sides QC DCJ to a charge that he

On 29 June 2009 at Arndell Park in the State of New South Wales, recklessly inflicted grievous bodily harm upon Kara Monro.

This is an offence under s 35(2) of the Crimes Act 1900 carrying a maximum penalty of 10 years, with a standard non-parole period of four years.

On 8 October 2010, Moore ADCJ sentenced the respondent to imprisonment for one year and eight months, but suspended the operation of that sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 on condition of the respondent entering into a good behaviour bond.

The Director of Public Prosecutions has appealed against that sentence pursuant to s 5D of the Criminal Appeal Act 1912.

Statutory provisions

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 Mumberson

Details

AGLC: R v Mumberson [2011] NSWCCA 54
Case: [2011] NSWCCA 54
Decision Date: 08 April 2011

CaseChat Overview and Summary

The appellant was convicted of recklessly inflicting grievous bodily harm upon a police officer and was sentenced to a term of imprisonment of one year and eight months, suspended over a period of three years. The Crown appealed the sentence on the grounds that the primary judge had failed to give sufficient regard to the standard non-parole period for this offence and had placed too much weight on subjective features of the case. The Crown argued that the sentence was manifestly inadequate and that a custodial sentence was warranted.

The court examined the principles of sentencing, particularly the need to balance the punishment of the offender with the protection of the community. The court considered whether the primary judge had given insufficient regard to the standard non-parole period for the offence, which is typically two years. The court also considered whether the primary judge had given too much weight to subjective features of the case, such as the appellant's remorse and good character. The court found that the primary judge had erred in both respects and that the sentence was manifestly inadequate.

The court held that the sentence was manifestly inadequate and that a custodial sentence was warranted. The court noted that the primary judge had failed to adequately consider the need for general deterrence and the need to protect the community. The court also noted that the primary judge had given too much weight to subjective features of the case, such as the appellant's remorse and good character. The court concluded that the sentence was manifestly inadequate and that a custodial sentence was warranted.

The Crown appeal was allowed, and the matter was remitted to the primary judge for re-sentencing. The court ordered that the appellant be re-sentenced to a term of imprisonment of two years, with a non-parole period of one year and four months. The appellant was also ordered to pay a fine of $1,000.

Orders