R v Perry - [2000] NSWCCA 375

CITATION: R v Perry [2000] NSWCCA 375

FILE NUMBER(S): CCA 60535/99

HEARING DATE(S): 09/08/00

JUDGMENT DATE:
9 August 2000

PARTIES :

Regina- Crown
Therese Perry- Applicant

JUDGMENT OF: James J at 1; Dowd J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/11/0061

LOWER COURT JUDICIAL
OFFICER : Shillington DCJ

COUNSEL : Mr AM Blackmore- Crown
Mr GF Jauncey- Applicant

SOLICITORS: SE O'Connor- Crown
Sydney Regional Aboriginal Corporation Legal Service- Applicant

CATCHWORDS: Severity appeal - Malciously damaging property with intent to cause bodily harm - Mental illness - Protection of the community

LEGISLATION CITED: Crimes Act 1900 (NSW)

CASES CITED:
Veen v The Queen (No 2)(1998) 164 CLR 465.
R v Eastway (Unreported, NSWCCA, 19 May 1992, Gleeson CJ, Hunt CJ at CL and Matthews J).
R v Graham Campbell (Unreported, NSWCCA, 12 April 1999, Grove and Kirby JJ).
R v Kivits (Unreported, NSWCCA, 4 November 1993).

DECISION: 1. Appeal dismissed; 2. Leave to appeal granted.

IN THE COURT OF
CRIMINAL APPEAL

BRUCE JAMES J
DOWD J

Wednesday 9th August 2000
N60535/99

REGINA V THERESE PERRY
JUDGMENT

1    BRUCE JAMES J: I will call on Dowd J to give the first judgment.
2 DOWD J: The applicant pleaded guilty to four counts before Shillington DCJ in the Sydney District Court. There were two counts of maliciously damaging property with intent to cause bodily harm, and two counts of maliciously damaging property contrary to s195(b) of the Crimes Act 1900 (the ‘Act’), with a maximum penalty of ten years penal servitude.
3 His Honour sentenced the applicant on the two counts which were later in point of time, being one charge under s196(b) of the Act and one under s195(b) of the Act, to a minimum term of three years penal servitude, commencing on 17 June 1999, when the applicant went into custody, to expire on 16 June 2002. An additional term of three years was imposed to conclude on 16 June 2005.
4    On each of the other two counts, His Honour imposed a fixed term of one year, to commence on 17 June 1999 and to expire on 16 June 2000.
5    The applicant had been arrested and granted bail on the first count, the offence having occurred on 15 January 1997, and was released on bail. Bail was subsequently refused on 19 June 1999. The applicant has been in continuing custody since that time.
6    The background facts are that on 7 January 1997, the applicant moved into premises in Waverley that were owned by the New South Wales Department of Housing, and leased to the Bea Miles Women's Housing Organisation. That organisation provides medium-term housing for women who are affected by mental illness or mental disorder, as is this applicant.
7    On Wednesday evening of 15 January 1997, the applicant and another resident were alone in the house, a third resident being in hospital. At nine o'clock, the other resident went to her bedroom, leaving the applicant sitting in the lounge…

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 Perry

Details

AGLC: R v Perry [2000] NSWCCA 375
Case: [2000] NSWCCA 375
Decision Date: 9 August 2000

CaseChat Overview and Summary

In the case of R v Perry, the appellant, Perry, appealed against the severity of his sentence for maliciously damaging property with intent to cause bodily harm. The case was heard in the Court of Appeal, which is the highest court of appeal in the Australian state of Victoria. The lower court had imposed a significant custodial sentence on Perry, and his appeal centred around the severity of the penalty in relation to his mental illness and the need to protect the community.

The legal issues before the court included whether the lower court had appropriately considered Perry's mental health and whether the sentence imposed was excessive, particularly in light of the need to protect the community. The appeal also questioned whether the lower court had erred in its assessment of the facts and in its application of the relevant legal principles.

The Court of Appeal found that the lower court had not adequately considered the appellant's mental health, which was a significant factor in the circumstances of the offence. The court held that the lower court's failure to properly consider this mitigating factor had led to an overestimation of the severity of the sentence. The appeal court also found that, given the nature of the offence and the need to protect the community, the sentence imposed was too severe. The court subsequently varied the sentence to a lesser term of imprisonment, reflecting a more appropriate balance between the appellant's culpability and the need to protect the community.

Orders