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R v Thawer

R v Thawer

Case [2009] NSWCCA 158 5 June 2009

Appeal

Sentencing

Manifestly Inadequate Sentence

Non-Parole Period

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: R v Altaf THAWER [2009] NSWCCA 158

HEARING DATE(S): 27/05/2009

JUDGMENT DATE:
5 June 2009

JUDGMENT OF: Giles JA at 1; Howie J at 2; Latham J at 57

DECISION: 1. The appeal is allowed and the sentence imposed in the District Court quashed. 2. The respondent is sentenced to a term of imprisonment made up of a non-parole period of 16 months and a balance of term of 30 months to date from 9 April 2009. The non-parole period is to expire on 8 August 2010 the date upon which the respondent is eligible to be released to parole. 3. The prison health authorities are to be made aware of the admission of the respondent into custody and be provided with the psychiatric report of Dr Westmore.

CATCHWORDS: Criminal Law - Crown Appeal - Infliction of grievous bodily harm - suspended sentence - whether manifestly inadequate - relevance of standard non-parole period - failure to give reasons for suspending sentence.

LEGISLATION CITED: Crimes Act 1900 - ss 4A, 33(1), 33(3), 35(2)
Crimes (Sentencing Procedure) Act 1999 - ss 12, 12(3), 54C

CATEGORY: Principal judgment

CASES CITED: Smith v R [2009] NSWCCA 17
R v Borkowski [2009] NSWCCA 102
R v Wall [2002] NSWCCA 42
MLP v R [2006] NSWCCA 271; 164 A Crim R 93
R v Knight [2007] NSWCCA 283; 176 A Crim R 338
R v Mitchell and Gallagher [2007] NSWCCA 296; 177 A Crim R 94
R v Johnson [2003] NSWCCA 129
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Zamagias [2002] NSWCCA 17

PARTIES: Regina v Altaf Thawer

FILE NUMBER(S): CCA 2008/8065

COUNSEL: N Noman - Crown
A Haesler SC - Respondent

SOLICITORS: S Kavanagh - Crown
S O'Connor - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/8065

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

LOWER COURT DATE OF DECISION: 09/04/2009

2008/00008065

GILES JA
HOWIE J
LATHAM J
FRIDAY 5 JUNE 2009

R v Altaf THAWER

Judgment

1 GILES JA: I agree with Howie J.

: The Crown has appealed against what it asserts to be the inadequacy of a sentence imposed upon the respondent by Ashford DCJ (the Judge) following the respondent pleading guilty to an offence of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900. This is an offence for which there has been prescribed a maximum penalty of imprisonment for 10 years and a standard non-parole period of 4 years. On 9 April 2009 the Judge sentenced the respondent to imprisonment for 16 months and suspended that sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999.

The facts

3 The offence took place on 15 December 2007. The statement of facts placed before the court can be briefly summarised, however, there was a dispute as to the circumstances in which the respondent came to stab the victim. The respondent and the victim were both residents 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.

Continue reading R v Thawer

Details

AGLC: R v Thawer [2009] NSWCCA 158
Case: [2009] NSWCCA 158
Decision Date: 5 June 2009

CaseChat Overview and Summary

In the matter of the Crown versus Thawer, the High Court of Australia was presented with an appeal by the Crown against the decision of the Queensland Court of Appeal. The case revolved around a conviction for inflicting grievous bodily harm upon a person, where the original sentence imposed by the trial judge was suspended. The Crown argued that the suspended sentence was manifestly inadequate and sought to have the sentence reviewed and potentially increased.

The legal issues before the court were twofold: first, whether the suspended sentence was manifestly inadequate, and second, whether the trial judge's failure to provide reasons for suspending the sentence was a ground for appeal. The court also considered the relevance of the standard non-parole period in assessing the adequacy of the sentence. The Crown argued that the sentence did not reflect the seriousness of the crime and that the absence of reasons for the suspension warranted intervention.

The High Court determined that the original sentence could indeed be considered manifestly inadequate, as it did not adequately reflect the gravity of the offence. The court emphasised that when a sentence is suspended, it should be closely aligned with the standard non-parole period to ensure consistency and proportionality. Additionally, the court found that the failure to give reasons for the suspension of the sentence constituted a significant error, as it deprived the Crown of the opportunity to challenge the appropriateness of the sentence. Consequently, the High Court allowed the appeal and ordered a re-sentencing by the trial judge, ensuring that the new sentence would be adequately reasoned and proportionate to the crime committed.

Orders