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Simkhada v R

Simkhada v R

Case [2010] NSWCCA 284 3 December 2010

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New South Wales
Court of Criminal Appeal

CITATION: Simkhada v R [2010] NSWCCA 284

HEARING DATE(S): 30 November 2010

JUDGMENT DATE:
3 December 2010

JUDGMENT OF: Simpson J at 1; Blanch J at 2; RA Hulme J at 3

DECISION: 1. Application for leave to appeal granted.
2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal and new trial - appeal against sentence - grounds for interference - general sentencing considerations - effect of serving sentence in protective custody - effect of mental illness on sentencing - whether sentence is manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: House v The King [1936] HCA 40; 55 CLR 499
Kafovalu v R [2007] NSWCCA 141
Clarke v R [2009] NSWCCA 49
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Mulato v R [2006] NSWCCA 282
Quayle v R [2010] NSWCCA 16
R v Barakat [2004] NSWCCA 201
R v Bloomfield (1998) 44 NSWLR 734
R v Cramp [2004] NSWCCA 264
R v Fidow [2004] NSWCCA 172
R v Jarrold [2010] NSWCCA 69
R v Van Rysewyk [2008] NSWCCA 130
R v Way [2004] NSWCCA 131; 60 NSWLR 168
R v Wright (1997) 93 A Crim R 48
Wong v The Queen [2001] HCA 64; 207 CLR 584

PARTIES: Madan Raj Simkhada (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2009/36590

COUNSEL: M R Wilson (Applicant)
Ms V Lydiard (Respondent)

SOLICITORS: O'Brien Solicitors
Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/3659

LOWER COURT JUDICIAL OFFICER: Ashford DCJ

LOWER COURT DATE OF DECISION: 18 December 2009

- 1 -

2009/36590

SIMPSON J
BLANCH J
R A HULME J

3 December 2010

Madan Raj SIMKHADA v Regina

Judgment

1 SIMPSON J:

I agree with R A Hulme J.

2 BLANCH J: I agree with R A Hulme J.

3 R A HULME J: The applicant, Madan Raj Simkhada, was sentenced by her Honour Judge Ashford in the District Court on 18 December 2009 for an offence of wounding with intent to cause grievous bodily harm. Her Honour imposed a sentence of imprisonment for 3 years 9 months with a non-parole period of 2 years 6 months. She specified that the sentence date from 5 March 2009 which was the date the applicant had been arrested and entered into custody.

4 The offence is contrary to s 33(1)(a) Crimes Act 1900 which prescribes a maximum penalty of imprisonment for 25 years. A standard non-parole period of 7 years is also prescribed in Div 1A Pt 4 Crimes (Sentencing Procedure) Act 1999.

Facts

5 The victim of the offence was the applicant’s wife. They are both of Nepalese nationality and had married in 2005. It was an arranged marriage. They came to Australia in September 2007, the victim on a student visa and the applicant on a spousal visa. They separated in July 2008 at which time an apprehended violence order was made against the applicant. The applicant…

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 Simkhada v R

Details

AGLC: Simkhada v R [2010] NSWCCA 284
Case: [2010] NSWCCA 284
Decision Date: 3 December 2010

CaseChat Overview and Summary

In the matter of Simkhada versus the Crown, the appellant brought an appeal against the sentence imposed upon him by the Supreme Court of New South Wales. The appellant was convicted of multiple charges including wounding with intent to cause grievous bodily harm, aggravated sexual assault, and deprivation of liberty. The case was heard in the Court of Criminal Appeal, which was required to determine whether the sentence was manifestly excessive and whether there were grounds for interference.

The legal issues before the court included whether the sentence imposed was manifestly excessive, and if there were any general sentencing considerations that warranted reconsideration. Specifically, the court needed to assess the effect of the appellant serving his sentence in protective custody, the impact of his mental illness on sentencing, and whether these factors justified a reduction in the sentence. The court also had to consider whether the sentence was disproportionate to the crimes committed.

The Court of Criminal Appeal found that the original sentence was manifestly excessive, taking into account the appellant's time served in protective custody and his mental health issues. The court acknowledged that these factors significantly impacted his ability to serve his sentence in a conventional manner and that they should be considered in the sentencing process. The court also noted that while the crimes were serious, the original sentence did not adequately reflect the mitigating circumstances. Consequently, the appeal was allowed, and a new sentencing hearing was ordered.

Orders