R v Newman

Case [2004] NSWCCA 102


NEW SOUTH WALES COURT OF CRIMINAL APPEAL

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

LEGISLATION CITED:
Crimes Act 1900 - ss 105A, 113(3)
Crimes (Sentencing Procedure) Act 1999 - ss 21A, 24(a), 28(3), 47(3)

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

  1. McCOLL JA:  I agree with Howie J.

  2. 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.

  3. 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.

  4. 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…

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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.

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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