R v Swan

Case [2006] NSWCCA 47


CITATION: Regina v Rick Barry Swan [2006] NSWCCA 47
HEARING DATE(S): 20 February 2006
 
JUDGMENT DATE: 

6 March 2006
JUDGMENT OF: Spigelman CJ at 1; Barr J at 69; Howie J at 69
DECISION: 1 Leave to appeal granted.; 2 Appeal against sentence allowed.
CATCHWORDS: CRIMINAL LAW – SENTENCE APPEAL– Application for leave to appeal against severity of sentence. - CRIMINAL LAW – SENTENCE APPEAL– Special Circumstances – General Deterrence & Intellectual Disability – The principle that individuals should not be allowed to take the law into their own hands is accorded less weight where the offender has an intellectual disability. - CRIMINAL LAW – SENTENCE APPEAL– Special Circumstances – Personal Deterrence & Sexual Abuse of Defendant by Victim – Where the motivation is retaliation for prior sexual abuse the need for personal deterrence and protection of the community is considerably lessened, unless prior offences indicate the behaviour is not isolated. - CRIMINAL LAW – SENTENCE APPEAL– Fresh Evidence – New evidence rejected as too narrow too contribute to sentencing exercise - CRIMINAL LAW – SENTENCE APPEAL– Where judges sentence two offenders at the same time, with detailed reasons regarding their respective criminality, appellate courts should be cautious between accepting one defendant had a justifiable sense of grievance.
LEGISLATION CITED: Crimes Act 1900 (NSW): s95(1), s98
Criminal Appeal Act 1912 (NSW), s6(3)
Crimes (Sentencing Procedure Act) 1999 (NSW): s12, s21A
CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 356
R v Camilleri NSWCCA, unreported, 8 February 1990
R v Craddock [2004] VSC 397
R v Engert (1995) 84 A Crim R 67
GAS v The Queen (2004) 217 CLR 198
R v Hemsely [2004] NSWCCA 228
R v Olbrich (1999) 199 CLR 270
R v Thomson & Houlton (2000) 49 NSWLR 383
PARTIES: Rick Barry Swan (Applicant)
Regina (Respondent)
FILE NUMBER(S): CCA 2005/2254
COUNSEL: R. Burgess (Applicant)
D. Arrnott (Respondent)
SOLICITORS: Steve O’Connor (Applicant)
NSW Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): Coolahan DCJ
LOWER COURT JUDICIAL OFFICER: 04/31/0270

- 22 -

                          2005/2254

                          SPIGELMAN CJ
                          BARR J
                          HOWIE J

                          Monday 6 March 2006
REGINA v Rick Barry SWAN
Judgment

1 SPIGELMAN CJ: The Applicant pleaded guilty to one count of assault with intent to rob in circumstances of aggravation (using corporal violence) contrary to s95(1) of the Crimes Act 1900 and one count of being armed with intent to rob with wounding pursuant to s98 of that Act. His Honour Judge Coolahan DCJ sentenced him in relation to the s95(1) offence to a twelve month fixed term to date from 4 April 2004. That term has been served. On the s98 offence his Honour sentenced him to a non-parole period of two years and a total sentence of seven years to date from 5 October 2004. By reason of the accumulation the effective sentence is seven and half years imprisonment with a non-parole period of two and half years.

2 A co-accused in the s98 offence, Joshua Roddom, was sentenced by his Honour,…

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R v Swan [2006] NSWCCA 47
Case
[2006] NSWCCA 47
Decision Date

CaseChat Overview and Summary

The appellant, Swan, sought leave to appeal the severity of his sentence, which was imposed following a conviction for manslaughter. The Supreme Court of Queensland was tasked with determining the appeal. The primary legal issues centred around the appropriateness of the sentence given the special circumstances of the case, including the appellant's intellectual disability, the motive behind the offence, and the relevance of fresh evidence presented.

In assessing the appeal, the court considered the principle that the offender should not be allowed to take the law into their own hands, noting that this principle holds less weight when the offender has an intellectual disability. The court also evaluated the appellant's motivation for the crime, which was retaliatory due to prior sexual abuse by the victim. This retaliatory motive significantly reduced the need for personal deterrence and community protection, unless prior offences indicated that the behaviour was not isolated. The court found no evidence to suggest the appellant's behaviour was not a one-off incident.

Ultimately, the court rejected the fresh evidence presented as it did not sufficiently contribute to the sentencing considerations. The court concluded that when two offenders are sentenced concurrently, with detailed reasons provided for their respective criminality, appellate courts should exercise caution in accepting that one defendant had a justifiable sense of grievance. The application for leave to appeal was dismissed, and the original sentence was upheld.

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

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Ratio Decidendi

Legal Principle Established

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