Sharma v The Queen - [2017] ACTCA 8

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Sharma v The Queen
Citation:	[2017] ACTCA 8
Hearing Date:	23 February 2017
DecisionDate:	23 February 2017
Before:	Murrell CJ, Rangiah J and Walmsley AJ
Decision:	Appeal dismissed, original sentence confirmed, see [50]-[51]
Catchwords:	CRIMINAL LAW – SEVERITY OF SENTENCE APPEAL – manifestly excessive – error in sentencing discretion – judgment and punishment – offences against the person – recklessly inflict grievous bodily harm – guilty plea – ‘one punch’ attack – offender intoxicated – good prospects of rehabilitation – intensive correction orders – sentence of full-time imprisonment imposed – partially suspended
Legislation Cited:	Crimes Act 1900 (ACT) s 20 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 11, 12, 53 Supreme Court Act 1933 (ACT) ss 37E, 37O
Cases Cited:	Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 House v The King (1936) 55 CLR 499 R v Duffy (2014) 297 FLR 359; [2014] ACTCA 53 Whelan v The Queen (2012) 228 A Crim R 1; [2012] NSWCCA 147
Parties:	Jordan Sharma (Appellant) The Queen (Respondent)
Representation:	Counsel Mr K Archer (Appellant) Mr J White SC (Respondent)
Solicitors Sharman Robertson Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 35 of 2016
Decision under appeal:	Court: Supreme Court of the ACT Before: Elkaim J Date of Decision: 22 July 2016 Case Title: R v Sharma Citation: [2016] ACTSC 180

THE COURT:

This is a severity appeal.

An appeal to the Court of Appeal against a sentence imposed by a single judge lies under s 37E(2)(a) of the Supreme Court Act 1933 (ACT) (‘Supreme Court Act'). On an appeal against sentence, whether by the Crown or an offender, the Court's wide powers include the power to increase or decrease the sentence and to substitute a different sentence, see s 37O(7) of the Supreme Court Act. As the Court of Appeal said in R v Duffy (2014) 297 FLR 359; [2014] ACTCA 53 at [53]:

On such an appeal, the Court of Appeal may intervene only if it is satisfied that there has been an error of the type referred to in House v The King (1936) 55 CLR 499. There must be a specific error of fact or law, or an implicit error that is discernible because the sentence is so plainly wrong (so manifestly excessive or manifestly inadequate or outside the range of available sentences or dramatically inappropriate) as to compel the conclusion that there has been an error in the exercise of the sentencing discretion, although no specific error can be identified.

The appellant was, on 22 July 2016, convicted of recklessly inflicting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) (‘Crimes Act’).

The maximum penalty for the offence is 13 years imprisonment.

The sentence appealed from was two years and three…

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 Sharma v The Queen

Details

AGLC: Sharma v The Queen [2017] ACTCA 8
Case: [2017] ACTCA 8
Decision Date: 23 February 2017

CaseChat Overview and Summary

Sharma appealed against a sentence of full-time imprisonment, partially suspended, imposed by a District Court judge for the offence of recklessly inflicting grievous bodily harm. The appeal concerned the severity of the sentence, with the appellant arguing it was manifestly excessive and that the sentencing judge had erred in the exercise of their discretion. The offence arose from a 'one punch' attack, during which the offender was intoxicated.

The primary legal issue before the Court of Criminal Appeal was whether the original sentence was demonstrably too severe, constituting an error in the sentencing discretion. This required the Court to consider the various factors relevant to sentencing, including the nature of the offence, the offender's intoxication, their guilty plea, and their prospects of rehabilitation, in determining if the imposed sentence was outside the acceptable range.

The Court of Criminal Appeal reviewed the sentencing remarks of the District Court judge and the evidence presented. It considered the gravity of the offence, the impact on the victim, and the offender's personal circumstances, including their intoxication at the time of the offence and their stated remorse and good prospects of rehabilitation. The Court applied established principles of sentencing, weighing the need for punishment and deterrence against the potential for rehabilitation. Ultimately, the Court found no error in the sentencing judge's exercise of discretion and concluded that the sentence imposed was not manifestly excessive.

The appeal was dismissed, and the original sentence of imprisonment was confirmed.

Orders

Orders of the court

Appeal dismissed, original sentence confirmed, see [50]-[51]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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