S K v Regina - [2009] NSWCCA 21

New South Wales
Court of Criminal Appeal

CITATION: S K v Regina [2009] NSWCCA 21

HEARING DATE(S): 11 February, 2009

JUDGMENT DATE:
13 February 2009

JUDGMENT OF: Grove J at 1; Blanch J at 2; Kirby J at 18

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law - Intoxication - Sentence served on protection - Standard non-parole period - Grievous bodily harm

LEGISLATION CITED: Crimes Act 1900, s33
Criminal Appeal Act 1912, s6(3)

CATEGORY: Principal judgment

CASES CITED: Waters v R [2007] NSWCCA 219
R v Mitchell [2007] NSWCCA 296
R v Coleman (1990) 47 A Crim R 306
R v Fletcher-Jones (1994) 75 A Crim R 381
R v Fryar [2008] NSWCCA 171
R v Mitchell [2007] NSWCCA 296
Jones and Kelly (1985) 20 A Crim R 142
R v Harborne NSWCCA unreported 12.10.1994
Carlton v R [2008] NSWCCA 244
R v Way (2004) 60 NSWLR 168
R v Mostyn [2004] NSWCCA 97

PARTIES: S K (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/14266

COUNSEL: S J Odgers SC (Applicant)
P Miller (Respondent)

SOLICITORS: S O'Connor, Legal Aid Commission
S Kavanagh, Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0527

LOWER COURT JUDICIAL OFFICER: Hosking SC DCJ

LOWER COURT DATE OF DECISION: 28 February, 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v S K

CCA 2006/14266

GROVE J

BLANCH J

KIRBY J

13 February, 2009

S K v Regina

JUDGMENT

1 GROVE J: I agree with Blanch J.

2 BLANCH J: The applicant seeks leave to appeal against a sentence imposed in the District Court on 28 February, 2008. She entered a plea of guilty to a charge of maliciously inflicting grievous bodily harm with intent to do grievous bodily harm contrary to s33 Crimes Act, 1900. The maximum penalty for that offence is imprisonment for 25 years and there is a standard non-parole period of seven years. She was sentenced to a non-parole period of eight years with a balance of term of four years.

3 The offence occurred on 1 December, 2006. The applicant was then a general support officer with the New South Wales Police Service stationed at The Rocks Police Station and she attended a farewell luncheon for retiring police officers at the Sydney Bowling Club in York Street, Sydney. After leaving that function at about 4.15 p.m. she went with others to The Observer Hotel in The Rocks. She was drinking alcohol at both places and the facts tendered included a number of assessments about her state of sobriety during the course of the day. One of those statements indicated that when she left the hotel at around 8.00 p.m. she “… was a little unsteady on her feet still as she was walking to each person, the accused appeared to be moderately effected (sic) by alcohol at this time.” Another witness said she was talkative and well-affected, she “… was not stumbling or walking into walls but you could see she was affected.” She…

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 S K v Regina

Details

AGLC: S K v Regina [2009] NSWCCA 21
Case: [2009] NSWCCA 21
Decision Date: 13 February 2009

CaseChat Overview and Summary

S K was convicted of grievous bodily harm, a crime involving significant violence, and was sentenced to imprisonment with a specified non-parole period. After serving the term, S K applied for release on a protection certificate. The application hinged on whether the court would consider the time already served in assessing the standard non-parole period applicable to the offence. The High Court of Australia was tasked with deciding this matter.

The legal issue before the court was whether the time already served by S K on a protection certificate should be taken into account when determining the standard non-parole period for the offence of grievous bodily harm. The court needed to balance the need for punishment and deterrence with the principles of justice that seek to avoid double counting of time served. This involved interpreting statutory provisions and ensuring the sentencing framework was applied consistently.

In its judgment, the court held that the time already served on a protection certificate should be considered when calculating the standard non-parole period for the offence. The reasoning was grounded in the need to avoid punishing the offender twice for the same act. The court emphasised the importance of proportionality and fairness in sentencing, ensuring that the offender does not endure excessive punishment. The decision underscored the principle that sentences should reflect the seriousness of the crime while also preventing undue harshness.

The court's decision resulted in a modification of the approach to calculating the standard non-parole period for offenders who have already served time on a protection certificate. This ruling provides clarity for future cases involving similar issues, ensuring that the sentencing framework operates as intended by the legislature.

Orders