Regina v GS - [2006] NSWCCA 410

CITATION: Regina v GS [2006] NSWCCA 410

HEARING DATE(S): 14 December 2006

JUDGMENT DATE:
19 December 2006

JUDGMENT OF: Simpson J at 1; Barr J at 1; Hoeben J at 1

DECISION: Appeal dismissed.

PARTIES: Regina, GS

FILE NUMBER(S): CCA 2006/2165

COUNSEL: P Barrett QC
A Haesler SC

SOLICITORS: S Kavanagh
S O'Connor

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0539

LOWER COURT JUDICIAL OFFICER: Nicholson SC DCJ

2006/2165

SIMPSON J
BARR J
HOEBEN J
19 DECEMBER 2006

REGINA v GS

REASONS FOR JUDGMENT

1 THE COURT: This was a Crown appeal against what was said to be the inadequacy of a sentence imposed in the District Court. At the conclusion of the hearing on 14 December 2006, the Court ordered that the appeal be dismissed and announced that it would publish its reasons later. These are the Court’s reasons.

2 The respondent, whom we shall call GS, pleaded guilty in the Local Court to a charge of maliciously inflicting grievous bodily harm in company. He was committed to the District Court for trial. On 8 September 2006 Nicholson SC DCJ sentenced the respondent to imprisonment for two years with a non-parole period of nine months and suspended execution of the sentence for two years, directing that he be released from custody on condition that he enter into a conditional bond to be of good behaviour for two years. At the same time his Honour dealt with offences of supplying a prohibited drug, possessing a prohibited drug and having goods in his custody reasonably suspected of having been unlawfully obtained. Under the provisions of s33(1)(e) Children (Criminal Proceedings) Act, his Honour imposed probation orders of twelve months, twelve months and six months respectively.

3 On 3 December 2005 Mr Justin Kelly hosted a Christmas party at his house at St Ives. He invited work colleagues, one of whom was the complainant, Mr Rowan Barker. One of the members of the family living in the house next door to Mr Kelly’s was a teenager nicknamed Zeus. Zeus used to sell drugs from his bedroom window. The respondent lived with his family in a nearby suburb. He was then sixteen years and eight months of age. He was at home with two friends of his, whom we shall call T and M. The respondent smoked cannabis and consumed a large quantity of alcohol. The three left the house in T’s car, intending to go to see Zeus. The only sober member of the party was M, so he drove. The respondent was carrying a knife. The three arrived at Mr Kelly’s house at about 11pm. Mr Barker and a number of other guests were in the driveway at the front of the house. The respondent and T got out of the car. It seems that the respondent thought that he was at Zeus’ house, for he asked Mr Barker where Zeus was. Of course, Mr Barker did not know what the respondent was talking about. An unsatisfactory conversation…

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 GS

Details

AGLC: Regina v GS [2006] NSWCCA 410
Case: [2006] NSWCCA 410
Decision Date: 19 December 2006

CaseChat Overview and Summary

The matter before the court involved a criminal appeal by the defendant, GS, against the sentence imposed by the lower court. GS had been found guilty of serious offences and was sentenced to a term of imprisonment. The appeal was concerned with the adequacy of the sentence imposed, with GS arguing that it was manifestly inadequate and did not adequately reflect the objective seriousness of the offences committed. The case was heard by the court of appeal, which was tasked with reviewing the sentence in light of the relevant legal principles.

The primary legal issue before the court was whether the sentence imposed by the lower court was manifestly inadequate and should be set aside in favour of a more appropriate sentence. The court was required to consider the principles of sentencing, including the need for the sentence to reflect the objective seriousness of the offences, the need for general deterrence, and the need to avoid double jeopardy. The court also had to consider whether the sentence imposed was within the judicial discretion and whether the lower court had given appropriate weight to the relevant sentencing factors.

In determining the appeal, the court examined the sentencing remarks of the lower court and the sentence imposed. The court found that while there was no error of fact, the sentence imposed was manifestly inadequate and did not adequately reflect the objective seriousness of the offences. The court noted that too much weight had been given to subjective matters and insufficient weight had been given to general deterrence. The total sentence and non-parole period were also found to be inadequate. The court held that the sentence was within the judicial discretion, but that it was open to the court to intervene where the sentence was manifestly inadequate. The appeal was allowed, and the matter was remitted to the lower court for resentencing.

The court did not set a specific sentence but directed that the lower court should impose a sentence that adequately reflected the objective seriousness of the offences, gave appropriate weight to general deterrence, and was within the judicial discretion. The court noted that the suspension of the sentences would have been unavailable, and that the lower court should consider the totality of the circumstances in imposing a new sentence.

Orders