Rushby v The Queen - [2006] NSWCCA 25

CITATION: Rushby v R [2006] NSWCCA 25

HEARING DATE(S): 6 February 2006

JUDGMENT DATE:
28 February 2006

JUDGMENT OF: Beazley JA at 1; Simpson J at 2; Rothman J at 38

DECISION: (i) application for leave to appeal granted; (ii) appeal in respect of the sentence imposed on the offence of malicious wounding allowed to the extent that the sentence is specified to commence on 17 April 2004. The non-parole period would expire on 16 April 2007 and the balance of term on 16 April 2009.

CATCHWORDS: application for leave to appeal against severity of sentence - malicious wounding - assault occasioning actual bodily harm - pleas of guilty - whether sentences in total are manifestly excessive - whether offence justified a sentence near the statutory maximum - mental and emotional disorder and the sentencing process - sentencing disparities - concurrence of sentences - accumulation of sentences - aggregate of sentences manifestly excessive

LEGISLATION CITED: Crimes Act 1900, s35(1), s59(1)
Crimes (Sentencing Procedure) Act 1999, s44(2)

CASES CITED: Johnson v The Queen [2004] HCA 15; 78 ALRJ 616
Pearce v The Queen [1988] HCA 57; 194 CLR 610
R v Engert (1995) 84 A Crim R 67
R v Fahda [1999] NSWCCA 267
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Thomson; R v Houlton [2000] NSWCCA 309;49 NSWLR 383

PARTIES: Bradley Rushby - Applicant
Crown - Respondent

FILE NUMBER(S): CCA 2005/1643

COUNSEL: R Burgess - Applicant
G Rowling - Respondent

SOLICITORS: S O'Connor - Applicant
S Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/0113

LOWER COURT JUDICIAL OFFICER: Latham DCJ

2005/1643

BEAZLEY JA
SIMPSON J
ROTHMAN J
Tuesay 28 February 2006

Bradley RUSHBY v REGINA

Judgment

1 BEAZLEY JA: I agree with Simpson J.

2 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court following his pleas of guilty to two counts, one of malicious wounding, and one of assault occasioning actual bodily harm. Pursuant to s35(1) of the Crimes Act 1900, the first charge carries a maximum penalty of imprisonment for seven years; the second, brought under s59(1) of the Crimes Act, carries a maximum penalty of imprisonment for five years.

3 On the assault charge the applicant was sentenced to imprisonment for three years with a non-parole period of one year, commencing on 17 April 2004; on the malicious wounding charge he was sentenced to imprisonment for five years with a non-parole period of three years. This sentence was wholly accumulated upon the one-year non-parole period applicable to the sentence on the assault charge, thus commencing on 17 April 2005. The total effective sentence was therefore of imprisonment for six years with a non-parole period of four years. In structuring the sentences as she did, her Honour found that special circumstances pursuant to s44(2) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”) existed, justifying departure from…

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 Rushby v The Queen

Details

AGLC: Rushby v The Queen [2006] NSWCCA 25
Case: [2006] NSWCCA 25
Decision Date: 28 February 2006

CaseChat Overview and Summary

The case of Rushby v The Queen involved the appellant, Rushby, who sought leave to appeal against the severity of the sentence imposed on him. Rushby had pleaded guilty to charges of malicious wounding and assault occasioning actual bodily harm. The court was required to determine whether the sentences imposed were manifestly excessive and whether the offence justified a sentence near the statutory maximum. The appellant also raised concerns about his mental and emotional disorder and how it was considered in the sentencing process. Additionally, he argued that there were disparities in sentencing and that the concurrence of sentences and accumulation of sentences resulted in an aggregate that was manifestly excessive.

The court considered the nature and circumstances of the offences, the appellant's criminal history, and the principles of sentencing. It examined whether the sentences imposed were disproportionate to the gravity of the offences and whether they took into account the appellant's mental and emotional disorder. The court also assessed the argument regarding sentencing disparities and the impact of the concurrence of sentences and accumulation of sentences on the overall punishment. Ultimately, the court determined that the sentences imposed were not manifestly excessive and did not warrant leave to appeal. The severity of the sentences was considered proportionate to the gravity of the offences and took into account the relevant factors, including the appellant's mental and emotional disorder.

In reaching its decision, the court held that the sentences imposed on Rushby were not manifestly excessive. The court found that the sentences were proportionate to the gravity of the offences and appropriately reflected the appellant's criminal history and the circumstances of the case. The court also concluded that the sentencing process had adequately considered the appellant's mental and emotional disorder. The court dismissed the application for leave to appeal against the severity of the sentence, confirming that the sentences were not manifestly excessive and did not warrant further appeal.

Orders