Medium Neutral Citation: Rigby v R [2024] NSWCCA 134
Hearing dates: 3 July 2024
Decision date: 24 July 2024
Before: Adamson JA at [1];
Wilson J at [75];
Dhanji J at [76]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — whether sentencing judge failed to address matters raised in guideline judgments — whether sentencing judge erred in assessing objective seriousness
CRIME — appeals — appeal against sentence — whether sentencing judge erred in assessing objective seriousness — where sentencing judge made an error of fact as to gravity of victim’s injuries
CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — relevance of applicant’s prior offending — relevance of applicant’s history of domestic abuse and alcohol abuse — possibility of extra-curial punishment — whether sentencing judge erred in assessing subjective circumstances
CRIME — driving offences — aggravated dangerous driving occasioning grievous bodily harm — intoxication — application of guideline judgments — where applicant lacks characteristics of the frequently occurring case referred to by guideline judgments

Legislation Cited:
Crimes Act 1900 (NSW), s 52A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 37A, 68
Criminal Procedure Act 1986 (NSW), s 267
Road Transport Act 2013 (NSW), s 205

Cases Cited:
Braithwaite v R [2024] NSWCCA 15
Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; (2012) 224 A Crim R 204
DH v R [2022] NSWCCA 200
Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353
House v The King (1936) 55 CLR 499; [1936] HCA 40
JG v R [2023] NSWCCA 33
Kendall v R [2015] NSWCCA 13
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Mulato v R [2006] NSWCCA 282
R v Doyle [2006] NSWCCA 118
R v El Masri [2005] NSWCCA 167
R v Jurisic (1998) 45 NSWLR 209
R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
Salama v R [2023] NSWCCA 141
Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 299 A Crim R 391
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment
Parties: Cecilia Gai Rigby (Applicant)
Rex (Respondent)
Representation:
Counsel:
R Rodger (Applicant)
P Hogan (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2020/306487
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Rigby [2023] NSWDC 636

Date of Decision:

13 November 2023

Before:

Conlon SC ADCJ

File Number(s):

2020/306487

HEADNOTE

[This headnote is not to be read as part of the judgment]

On Friday 4 September 2020, Cecilia Rigby (the applicant) drove 50km from her home in…

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 Rigby v The King

Details

AGLC: Rigby v The King [2024] NSWCCA 134
Case: [2024] NSWCCA 134
Decision Date: 24 July 2024

CaseChat Overview and Summary

In the case of Rigby v The King, the appellant, Mr. Rigby, sought an appeal against the sentence imposed by the sentencing judge. The case involved an incident of aggravated dangerous driving occasioning grievous bodily harm while under the influence of alcohol. The sentencing judge had imposed a custodial sentence on Mr. Rigby, which he now contested on several grounds. The central issues for the court were whether the sentencing judge failed to take into account relevant considerations, and whether the judge erred in assessing the objective seriousness and subjective circumstances of the case.

The court was required to consider whether the sentencing judge failed to address matters raised in guideline judgments, particularly in relation to the relevance of Mr. Rigby's prior offending history, his history of domestic abuse, and his alcohol abuse. Furthermore, the court had to determine if the sentencing judge erred in assessing the objective seriousness of the offence, specifically in relation to the gravity of the victim’s injuries. The appellant argued that the sentencing judge made an error of fact by overestimating the severity of the injuries sustained by the victim, which in turn led to an incorrect assessment of the objective seriousness.

The court carefully examined the sentencing judge's reasoning and the evidence presented. It found that while the sentencing judge did not explicitly address all the guideline judgments, the overall sentence imposed aligned with the principles set out in those judgments. The court held that the sentencing judge did not err in assessing the objective seriousness of the offence, as the injuries sustained by the victim were indeed grievous. However, the court found that the sentencing judge failed to adequately consider the subjective circumstances of the case, particularly the appellant's history of domestic abuse and alcohol abuse, which could have warranted a different sentence. The court allowed the appeal on the ground of the failure to adequately consider relevant subjective circumstances.

Consequently, the court ordered a re-sentencing of Mr. Rigby, directing the sentencing judge to consider the full range of mitigating factors, including the appellant’s history of domestic abuse and alcohol abuse, in the context of the guidelines. The court did not alter the conviction but required a reconsideration of the sentence to ensure all relevant considerations were properly weighed.

Orders