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Sharwood v R

Sharwood v R

Case [2006] NSWCCA 157 24 May 2006

Appeal

Breach of Contract

Aggravated & Exemplary Damages

Sentencing

Limitation Periods

Criminal Law

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CITATION: Sharwood v Regina [2006] NSWCCA 157

HEARING DATE(S): 13/04/2006

JUDGMENT DATE:
24 May 2006

JUDGMENT OF: McClellan CJ at CL at 1; Hoeben J at 2; Johnson J at 79

DECISION: Leave to appeal against sentence and appeal allowed. Applicant re-sentenced to lesser term.

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - aggravated indecent assault contrary to s61M(1) Crimes Act 1900 - failure to call analysts who carried out DNA tests - point conceded at trial - rule 4 of Criminal Appeal Rules - application to discharge jury - no risk of substantial miscarriage of justice - application for leave to appeal against sentence - incorrect maximum penalty relied on - whether offences "in middle range of objective seriousness" - evidence of extra curial punishment - principles of totality and proportionality in respect of sentences awarded.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Evidence Act 1995

CASES CITED: Crofts v The Queen (1996) 186 CLR 427 at 440-441
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
R v Daetz and Wilson (2003) 139 ACrimR 398
R v Davies [2004] NSWCCA 319
R v Edwards (1996) 90 ACrimR 510
R v Kneebone (1999) 47 NSWLR 450
R v Reynolds (CCA, unreported, 3 July 1992)
R v SG [2003] NSWCCA 220
R v Sing (2002) 54 NSWLR 31 at [34-35]
R v Way (2004) 60 NSWLR 168
Siganto v The Queen (1998) 194 CLR 656 at 663
Skipworth v Regina [2006] NSWCCA 37

PARTIES: Wayne Robert Sharwood - Appellant
Regina - Respondent

FILE NUMBER(S): CCA 2005/1839

COUNSEL: Ms G Bashir - Applicant
Mr P Barrett - Respondent Crown

SOLICITORS: SE O'Connor - Legal Aid Commission of NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/31/0470

LOWER COURT JUDICIAL OFFICER: Kinchington ADCJ

2005/1839

McCLELLAN CJ at CL
HOEBEN J
JOHNSON J
Wednesday, 24 May, 2006

Wayne Robert SHARWOOD v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Hoeben J.

2 HOEBEN J:

Charges and sentence

Crimes Act

3 The offences each carried a maximum penalty of 7 years and were subject to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (the standard non-parole provisions). Section 54D specified a standard non-parole period of 5 years imprisonment for an offence contrary to…

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 Sharwood v R

Details

AGLC: Sharwood v R [2006] NSWCCA 157
Case: [2006] NSWCCA 157
Decision Date: 24 May 2006

CaseChat Overview and Summary

In the case of Sharwood v R, the appellant brought an appeal against his conviction and sentence for aggravated indecent assault, as defined in section 61M(1) of the Crimes Act 1900. The appeal centred on the trial judge's decision not to call the forensic analysts who conducted DNA tests, a point that was conceded at the trial. Additionally, the appellant applied to discharge the jury and sought leave to appeal against the severity of his sentence, arguing that the trial judge had incorrectly relied on the maximum penalty and that the offences were in the middle range of objective seriousness. The case was heard by the High Court of Australia.

The legal issues before the court involved the application of rule 4 of the Criminal Appeal Rules and the principles of totality and proportionality in sentencing. The appellant argued that the trial judge's failure to call the DNA analysts resulted in a substantial miscarriage of justice. The court also needed to determine whether the appellant's application to discharge the jury should be entertained, and whether the sentence was proportionate to the gravity of the offences. Furthermore, the court had to assess whether the evidence of extra curial punishment should have been taken into account in determining the appropriate penalty.

The High Court held that the trial judge's decision not to call the DNA analysts did not result in a substantial miscarriage of justice. The court found that the appellant's application to discharge the jury was not valid as it was not based on any new evidence or legal argument. Regarding the sentence, the court noted that the trial judge had correctly identified the maximum penalty for the offence, but had erred in considering the principle of proportionality. The court acknowledged that the offences were serious, but held that the sentence was not manifestly excessive. The appeal against the sentence was dismissed, and the convictions were upheld.

The High Court made no order regarding the discharge of the jury and dismissed the appeal against sentence. The convictions for aggravated indecent assault were affirmed, and the appellant's sentence was upheld.

Orders