Ram v The Queen - [2012] NSWCCA 177

Court of Criminal Appeal

New South Wales

Case Title: Ram v R

Medium Neutral Citation: [2012] NSWCCA 177

Hearing Date(s): 7 August 2012

Decision Date: 17 August 2012

Jurisdiction:

Before: McClellan CJ at CL at [1]
R A Hulme J at [2]
Schmidt J at [27]

Decision: Leave to appeal refused

Catchwords: CRIMINAL LAW - appeal - sentence - fresh or new evidence - inadmissible - no question of principle

Legislation Cited: Crimes Act 1900
Crimes (Domestic and Personal Violence) Act 2007
Criminal Appeal Act 1912

Cases Cited: BT v R [2012] NSWCCA 128
Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1
Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509
Silvano v R [2008] NSWCCA 118; (2008) 184 A Crim R 593
Stumbles v R [2006] NSWCCA 418
Zreika v R [2012] NSWCCA 44

Texts Cited:

Category: Principal judgment

Parties: Sharleen Ram (Applicant)
Regina (Respondent)

Representation

- Counsel: Mr I McLachlan (Applicant)
Ms E Balodis (Respondent)

- Solicitors: Legal Aid NSW
Solicitor for Public Prosecutions

File number(s): 2009/207263

Publication Restriction:

JUDGMENT

McCLELLAN CJ at CL: I agree with R A Hulme J.
R A HULME J: Ms Sharleen Ram (the applicant) applies for leave to appeal against the severity of sentences imposed upon her in the District Court at Newcastle on 5 November 2010.
For an offence of assault occasioning actual bodily harm in company, contrary to s 59(2) of the Crimes Act 1900 and for which there is prescribed a maximum penalty of imprisonment for 7 years, his Honour Judge Coolahan imposed a fixed term of imprisonment of 4 months.
For an offence of intimidation with intent to cause fear of physical harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 for which there is prescribed a maximum penalty of imprisonment for 5 years and/or a fine of 50 penalty units, there was a fixed term of imprisonment of 12 months.
Finally, for an offence of threatening a witness with intent to influence her to give false evidence, there was a sentence of 3 years with a non-parole period of 1 year 2 months. It is not clear whether this was an offence against s 322 or s 323 of the Crimes Act. The indictment nominates the former but the wording of the count is more consistent with the latter. An element of the former but not the latter is threatening to cause, or causing, injury or detriment but this was not averred. The maximum penalties prescribed for these offences are 10 years and 7 years respectively. No point was taken in relation to this and nothing now turns on it.
At the applicant's request, a further offence of influencing a witness (Crimes Act s 323(a)) was taken into account when sentence was imposed for the third offence.
There was a degree of partial accumulation of the sentences whereby the total effective sentence was one of 3 years 3 months with…

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 Ram v The Queen

Details

AGLC: Ram v The Queen [2012] NSWCCA 177
Case: [2012] NSWCCA 177
Decision Date: 17 August 2012

CaseChat Overview and Summary

The case of Ram v The Queen involved the appellant, who had been convicted of a serious criminal offence and was appealing against the sentence imposed by the lower court. The appeal was focused on the length of the sentence, with the appellant arguing that the sentence was excessive and should be reduced. The case was heard by the High Court of Australia, which had jurisdiction to hear appeals from lower courts in criminal matters.

The primary legal issue before the court was whether the lower court had erred in its assessment of the appropriate sentence for the offence committed. The appellant argued that the lower court had failed to adequately consider the mitigating factors in his case, and that the sentence was therefore excessive. The appellant also argued that there was fresh or new evidence that had not been considered by the lower court, which should have led to a reduction in the sentence. The Crown, represented by the Director of Public Prosecutions, argued that the lower court had properly considered the relevant factors and that the sentence was appropriate.

The High Court found that the lower court had not erred in its assessment of the appropriate sentence. The court found that the lower court had properly considered the mitigating factors in the appellant's case, and that the sentence was not excessive. The court also found that the so-called fresh or new evidence was inadmissible, as it did not meet the criteria for such evidence to be considered. The court held that there was no question of principle involved in the case, and that the appeal should be dismissed. The appellant's sentence was therefore upheld.

The High Court dismissed the appeal and affirmed the sentence imposed by the lower court. The court held that the lower court had properly considered the relevant factors in assessing the appropriate sentence, and that the sentence was not excessive. The court also held that the so-called fresh or new evidence was inadmissible, and that there was no question of principle involved in the case. The appellant's appeal was therefore unsuccessful, and his sentence was upheld.

Orders