Johnson J at [1]; Lonergan J at [157]; Dhanji J at [158].
Decision:
1. Grant leave to appeal against sentence.
2. Appeal against sentence dismissed.
Catchwords:
CRIME – appeal against sentence – domestic violence offences – three victims – whether Applicant’s mental health conditions at time of offending properly taken into account on sentence – no error demonstrated – former occupation of Applicant taken into account on sentence – potential for greater degree of hardship in custody as a result of former occupation – Applicant seeks to rely upon post-sentence fresh evidence of assaults and hardship actually experienced in custody – whether fresh evidence admissible – consideration of relevant principles – miscarriage of justice not demonstrated – appeal against sentence dismissed
John Richardson (a pseudonym) (Applicant) Regina (Respondent)
Representation:
Counsel: Ms GA Bashir SC; Ms R Khalilizadeh (Applicant) Ms K Jeffreys (Respondent)
Solicitors: Lenz Legal Pty Ltd (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2019/384709; 2019/385111
Publication restriction:
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Decision under appeal
Court or tribunal:
District Court
Jurisdiction:
Criminal
Citation:
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Date of Decision:
27 November 2020
Before:
Haesler SC DCJ
File Number(s):
2019/384709; 2019/385111
Judgment
JOHNSON J: By Notice of Appeal filed on 7 June 2021, the Applicant, John Richardson (a pseudonym), seeks leave to appeal with respect to an aggregate sentence of imprisonment imposed at the Wollongong District Court on 27 November 2020 for a number of domestic violence offences.
Following pleas 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.
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Details
AGLC
Richardson v R [2021] NSWCCA 304
Case
[2021] NSWCCA 304
Decision Date
CaseChat Overview and Summary
Richardson, the applicant, appeals against his sentence for domestic violence offences involving three victims. The primary issue before the court was whether the sentencing judge had adequately considered the applicant's mental health conditions at the time of the offending. Additionally, the court had to determine if the applicant's former occupation, which could potentially result in a greater degree of hardship in custody, was appropriately factored into the sentence. The applicant also sought to introduce fresh evidence of assaults and hardship experienced in custody post-sentence, raising questions about the admissibility of such evidence.
The court examined whether the sentencing judge had erred in not sufficiently taking into account the applicant's mental health conditions. The court found no such error, as the sentencing judge had considered the mental health issues in the context of the offending behaviour and its impact on the victims. Regarding the applicant's former occupation, the court acknowledged that it was relevant to the sentencing process, particularly in relation to the potential for greater hardship in custody. However, it was determined that the sentencing judge had appropriately considered this factor. Concerning the fresh evidence, the court applied relevant principles and concluded that the introduction of such evidence did not demonstrate a miscarriage of justice.
Ultimately, the court dismissed the appeal against sentence. The sentencing judge's consideration of the applicant's mental health conditions and former occupation was deemed adequate, and the fresh evidence did not alter the outcome of the appeal. The court found no basis for the appeal to succeed and upheld the original sentence.