Legal Research
Cases
Regina v APM

Regina v APM

Case [2005] NSWCCA 463 14 December 2005

No judgment structure available for this case.

Type to search within this case.

CITATION:
REGINA v APM [2005] NSWCCA 463
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14 December 2005

JUDGMENT DATE:

14 December 2005

JUDGMENT OF:
Hodgson JA at 1/53; McClellan CJ at CL at 2; Hall J at 54

DECISION:
1. Appeal allowed; 2. Sentence quashed; 3. Respondent sentenced to a non-parole period of one year with an additional term of a further year; 4. The non-parole period portion of the sentence to be served by periodic detention; 5. Order the respondent to continue reporting to the Metropolitan Periodic Detention Centre to complete the balance of the term of the sentence.

CATCHWORDS:
CRIMINAL LAW - Crown appeal against sentence - maliciously inflicting grievous bodily harm upon an infant - brain damage - injury inflicted recklessly in panic - remorse - guilty plea - periodic detention - sentence partly served - whether sentence manifestly inadequate - whether insufficient weight given to objective seriousness of offence - whether Local Court jurisidction an irrelevant consideration - whether incorrect formulation of sentence

LEGISLATION CITED:

Crimes Act 1900
Children and Young Persons (Care and Protection) Act 1998
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Dinsdale v The Queen (2000) 202 CLR 321
R v Baker [2000] NSWCCA 85
R v Clark, unreported, NSWCCA, 27 March 1995
R v Cramp [2004] NSWCCA 264
R v Dunn unreported, NSWCCA, 6 November 1995
R v Hallocoglu (1992) 29 NSWLR 67
R v Pangallo (1991) 56 A Crim R 441
R v Pitcher (unreported, NSWCCA, 19 February 1996
R v Potter (1994) 72 A Crim R 108
R v Rainbow unreported, NSWCCA, 20 December 1996
R v Remilton [2001] NSWCCA 546
R v Royal [2003] NSWCCA 275
R v Wall [2002] NSWCCA 42

PARTIES:
Crown (Appl)
APM (Resp)

FILE NUMBER(S):
CCA 2005/1568

COUNSEL:
J Bennett SC (Crown/Appl)
J Manuell (Resp)

SOLICITORS:
Director of Public Prosecutions (Crown)
Legal Aid Commission of NSW (Resp)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0822

LOWER COURT JUDICIAL OFFICER:
Neild DCJ

2005/1568

HODGSON JA
McCLELLAN CJ at CL
HALL J
WEDNESDAY 14 DECEMBER 2005

REGINA v APM

Judgment

1 HODGSON JA: The Court is in a position to give judgment. I will ask Justice McClellan to deliver the first judgment.

2 MCCLELLAN CJ at CL: The respondent pleaded guilty to one charge of maliciously inflicting grievous bodily harm upon BH (also known as CH) contrary to s 35(1)(b) of the Crimes Act 1900. He also asked that a charge of neglecting to provide adequate and proper medical aid to BH contrary to s 228 of the Children and Young Persons (Care and Protection) Act 1998 be taken into account on sentencing. Both matters arose from an incident that occurred on 20 December 2003.

3 The maximum penalty for the charge pursuant to the Crimes Act is seven years imprisonment. The maximum penalty in relation to the failure to provide adequate and proper medical aid is a fine 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 Regina v APM

Details

AGLC: Regina v APM [2005] NSWCCA 463
Case: [2005] NSWCCA 463
Decision Date: 14 December 2005

CaseChat Overview and Summary

The defendant, APM, was convicted of causing grievous bodily harm to an infant and was sentenced to periodic detention by the Local Court. The Crown appealed the sentence, arguing that it was manifestly inadequate, that insufficient weight was given to the objective seriousness of the offence, and that the Local Court's jurisdiction was irrelevant. The court had to determine whether the sentence was manifestly inadequate, whether the objective seriousness of the offence was adequately considered, and whether the Local Court's jurisdiction was correctly applied.

The court found that the sentence was manifestly inadequate given the nature of the offence. The defendant had recklessly caused grievous bodily harm to an infant, resulting in significant brain damage. The court noted the defendant's guilty plea and remorse but emphasised the need for a sentence that reflected the gravity of the crime. The court also held that the Local Court had correctly exercised its jurisdiction in sentencing the defendant, and that the appeal should not be dismissed solely on the basis of jurisdiction. The formulation of the sentence was incorrect in that it did not adequately reflect the objective seriousness of the offence.

The court concluded that the sentence was manifestly inadequate and that insufficient weight had been given to the objective seriousness of the offence. The sentence was quashed, and the matter was remitted to the Local Court for re-sentencing. The court emphasised the importance of considering the gravity of the offence and the need for a sentence that reflects the harm caused to the victim. The court also noted that the defendant had partly served the original sentence and that this should be taken into account in the re-sentencing process.

Orders