Rudolf v The Queen - [2016] NSWCCA 313

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rudolf v R [2016] NSWCCA 313
Hearing dates: 1 December 2016
Decision date: 16 December 2016
Before: Meagher JA at [1]
Johnson J at [2]
Rothman J at [62]
Decision:
Leave to appeal against sentence refused.

Catchwords: CRIMINAL LAW – appeal against sentence – offence of assault occasioning actual bodily harm contrary to s.59(1) Crimes Act 1900 – full time sentence of imprisonment imposed – whether sentencing judge erred by failing to consider alternatives to full-time custody – error not demonstrated – leave to appeal against sentence refused
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Cousins [2002] NSWCCA 340; 132 A Crim R 444
Douar v R [2005] NSWCCA 455; 159 A Crim R 154
R v Zamagias [2002] NSWCCA 17
Walker v R [2016] NSWCCA 213
McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549
R v Carroll [2010] NSWCCA 55; 77 NSWLR 45
Category: Principal judgment
Parties: Joshua Rudolf (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr S Corish (Applicant)
Ms S Dowling SC (Respondent)
Solicitors:
Miers Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2015/230431
Decision under appeal

Court or tribunal:

District Court of New South Wales

Date of Decision:

8 June 2016

Before:

Her Honour Judge Wass SC

File Number(s):

2015/230431

Judgment

MEAGHER JA: I agree with Johnson J that Mr Rudolf’s application for leave to appeal against his sentence should be refused.
JOHNSON J: The Applicant, Joshua Rudolf, seeks leave to appeal with respect to the sentence imposed in the Sydney District Court on 8 June 2016 for an offence of assault occasioning actual bodily harm contrary to s.59(1) Crimes Act 1900.
The Applicant was sentenced to imprisonment comprising a non-parole period of 18 months commencing on 8 June 2016 and expiring on 7 December 2017, with a balance of term of six months commencing on 8 December 2017 and expiring on 7 June 2018.
The maximum penalty for an offence under s.59(1) is imprisonment for five years. There is no standard non-parole period for this offence.

Facts of Offence

What follows is drawn from the sentencing facts which were agreed to in the District Court. The narrative of events is supported, as well, by still photographs taken from the CCTV system at the Maroubra Bay Hotel. In addition, both the Applicant and the victim gave evidence at the sentencing hearing, about which the sentencing Judge made certain findings. Reference will be made to these findings later in the judgment.
During the afternoon of Friday, 27 March 2015, the Applicant (then aged 24 years) was drinking with friends at the Maroubra Bay Hotel. The Applicant is 1.98 metres tall (6’6”) and has a large muscular build.
At about 5.45 pm that day, the victim, Corey Adams (then aged 53 years), walked past the veranda area of 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 Rudolf v The Queen

Details

AGLC: Rudolf v The Queen [2016] NSWCCA 313
Case: [2016] NSWCCA 313
Decision Date: 16 December 2016

CaseChat Overview and Summary

Rudolf was convicted of assault occasioning actual bodily harm and appealed against the sentence imposed by the Supreme Court of the state. The court was required to determine whether the sentencing judge erred by failing to consider alternatives to full-time custody. The appeal hinged on the contention that the judge did not adequately consider non-custodial options, which is a critical aspect of sentencing in criminal cases. The appeal court examined the sentencing principles and the judge's reasoning in imposing a full-time sentence of imprisonment. It found that the judge had considered the seriousness of the offence and the offender's history, and determined that full-time custody was necessary for public protection and deterrence. The court concluded that the sentencing judge did not err in imposing the sentence, and therefore refused leave to appeal against the sentence.

Orders