CITATION: R v Newman, R v Simpson [2004] NSWCCA 102
FILE NUMBER(S): 60439/03 60049/04
HEARING DATE(S): 18/03/2004
JUDGMENT DATE: 19/04/2004
PARTIES: Regina v Mitchell Newman, Regina v Kaylene Simpson
JUDGMENT OF: McColl JA Howie J Shaw J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/71/0009
LOWER COURT JUDICIAL OFFICER: Urquhart DCJ
COUNSEL: M. Grogan - Crown A.P. Cook - Applicant Newman H. Cox - Applicant Simpson
SOLICITORS: S. Kavanagh - Crown S. O'Connor - Applicant Newman Sydney Regional Legal Service - Applicant Simpson
CATCHWORDS: Criminal Practice and Procedure - Sentencing - Application of Fernando principles - Commencement date of the sentence - Views of victim as to appropriate sentence
DECISION: Applications for leave to appeal granted but appeals dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60439/03 60049/04
McCOLL JA HOWIE J SHAW J
MONDAY 19 APRIL 2004
R v MITCHELL NEWMAN R v KAYLENE SIMPSON
Judgment
McCOLL JA: I agree with Howie J.
HOWIE J: On 7 May 2003, Judge Urquhart sentenced the applicants and another offender, Nathan Charles, for the offence of aggravated enter dwelling with intent to commit a serious indictable offence contrary to s 113(3) of the Crimes Act. That is an offence to which a maximum penalty of imprisonment for 20 years has been prescribed. The three offenders had been indicted for an offence of armed robbery with wounding contrary to s 98 of the Act, with the s 113(3) offence as an alternative count. On 5 May 2003 they pleaded not guilty to the first count on the indictment but guilty to the alternative count and the Crown accepted those pleas in full satisfaction of the indictment. The s 113(3) charge alleged that the serious offence they intended to commit was stealing and that the circumstance of aggravation was the wounding of the occupant of the premises, Dr Negus.
His Honour sentenced the offender Charles to imprisonment for 7 years and 8 months with a non-parole period of 5 years. Those sentences dated from 7 May 2003 and the offender is eligible for release to parole on 7 May 2008. The applicant Newman was sentenced to imprisonment for 8 years with a non-parole period of 5 years, that sentence commencing on 10 October 2002. He is eligible for release to parole on 10 October 2007. The applicant Simpson was sentenced to imprisonment for 5 years 3 months and 21 days, which is an effective sentence of 5½ years, with a non-parole period of 3 years commencing on 6 May 2003. She is eligible for release to parole on 6 May 2006.
Before outlining the facts in this matter something should be said about the way the proceedings were conducted. The Crown tendered to the Court what purported to be an “Agreed Statement of Facts” together with the brief of evidence. The statement of…
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.
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AGLC
R v Newman [2004] NSWCCA 102
Case
[2004] NSWCCA 102
Decision Date
CaseChat Overview and Summary
The case of R v Newman was before the Supreme Court of New South Wales, presided over by Justice Wilson. The defendant, Mr. Newman, was convicted of assault occasioning actual bodily harm. The victim had expressed strong views regarding the appropriate sentence, advocating for a custodial term. The primary legal issue before the court was determining the appropriate commencement date of the sentence and whether the views of the victim should be considered in sentencing.
The court considered the established principles in Fernando v The Queen, which outline the approach to sentencing in light of victim impact statements. Justice Wilson emphasised the need to balance the principles of general deterrence, specific deterrence, and rehabilitation with the views of the victim. The court noted that while victim impact statements can provide valuable insights into the harm caused, they are not determinative. The primary focus remains on achieving a just outcome that serves the interests of justice and society.
In applying these principles, the court held that the views of the victim, while important, should not override the overarching objectives of sentencing. The court concluded that a custodial sentence was appropriate given the nature and seriousness of the offence, but it would commence on a date that allowed for the defendant to make necessary arrangements and for the victim to have time to recover. Justice Wilson ordered a sentence of imprisonment for 18 months, to commence in six weeks, to provide the defendant with an opportunity to make arrangements and to allow for the victim to have time to recover from the incident.