Regina v Maisey - [2005] NSWCCA 347

CITATION:
Regina v Maisey [2005] NSWCCA 347

HEARING DATE(S): 6 September 2005

JUDGMENT DATE:

11 October 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Grove J at 2; Smart AJ at 3

DECISION:
Leave to appeal against sentence granted - Appeal against sentence dismissed

CATCHWORDS:
Sentencing - robbery using corporal violence with infliction of grievous bodily harm - judge erred in relying on his own experience of effects of back injury and in failing to alert defence of his intended finding of victim's permanent back injury - procedural unfairness - grave offence and high criminality - on re-sentencing no lesser sentence warranted - non-parole period of 5 years 9 months balance of term of 3 years 3 months

LEGISLATION CITED:

Crimes Act
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995

CASES CITED:
R v Slack [2004] NSWCCA
Royall v The Queen (1990) 172 CLR 378

PARTIES:
Regina v Troy James Maisey

FILE NUMBER(S):
CCA 2005/882

COUNSEL:
(A) P Hamill SC
(C) J L Bennett SC

SOLICITORS:
(A) S E O'Connor
(C) S Kavanagh

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0519

LOWER COURT JUDICIAL OFFICER:
Finnane DCJ

2005/882 CCAP

MCCLELLAN CJ AT CL

GROVE J

SMART AJ

Tuesday, 11 October 2005

REGINA v Troy James MAISEY

Judgment

1. McCLELLAN CJ at CL: I agree with Smart AJ

2. GROVE J: I agree with Smart AJ

3. SMART AJ : Troy James Maisey seeks leave to appeal against a sentence comprising a non-parole period of 5 years 9 months imprisonment to commence on 3 January 2003 with a balance of term of 3 years 3 months to commence on 3 October 2008 and to expire on 2 January 2012 for the offence of robbery using corporal violence with infliction of grievous bodily harm. The offence carries a maximum penalty of 25 years imprisonment.

4. The applicant pleaded guilty at the earliest opportunity and received the full discount of 25 per cent. The applicant did not dispute that the victim of the offence, suffered grievous bodily harm in the sense that he received a cut to his face which was severe enough to require stitches and that he would have received some bruising. That was said to be the only grievous bodily harm inflicted by the applicant and his co-offender Sean Michael Stecko. They contended that the other extensive grievous bodily harm suffered by the victim, was not their responsibility. The judge found that the really serious harm suffered by the victim arose from his falling about six metres to the ground from the balcony of the flat in which he lived which was two storeys above the ground and suffering severe injuries to his spine, legs and arms.

5. The judge noted that some of the facts were not in dispute. He said that it was not possible for him to resolve every single dispute but he endeavoured to set out the salient facts and those needed for the purpose of sentencing.

6. The applicant knew the…

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 Maisey

Details

AGLC: Regina v Maisey [2005] NSWCCA 347
Case: [2005] NSWCCA 347
Decision Date: 11 October 2005

CaseChat Overview and Summary

The appellant, Maisey, was convicted of robbery and sentenced to imprisonment after assaulting a victim, causing grievous bodily harm. The Court of Appeal reviewed the case, focusing on the sentencing process and the judge's reliance on personal experience regarding the effects of a back injury sustained by the victim. The court found that the trial judge erred by not alerting the defence of his intended finding that the victim's back injury was permanent and by relying on his own experience of the effects of a back injury.

The legal issues before the court were whether the trial judge's reliance on personal experience and failure to inform the defence about his intended finding constituted procedural unfairness and whether these errors warranted a re-sentencing. The court concluded that the trial judge's actions did indeed constitute procedural unfairness. However, given the gravity of the offence and the high degree of criminality involved, the court determined that no lesser sentence was warranted on re-sentencing.

The Court of Appeal upheld the appellant's conviction but varied the sentence. The non-parole period was set at 5 years and 9 months, and the balance of the term was 3 years and 3 months. This decision recognised the seriousness of the crime while ensuring the sentence was fair and just, taking into account the procedural errors made during the original sentencing.

Orders