Speechly v The Queen - [2008] NSWCCA 204

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Speechly v R [2008] NSWCCA 204

FILE NUMBER(S):
2007/3065

HEARING DATE(S):
15/08/2008

JUDGMENT DATE:
4 September 2008

PARTIES:
Justin Speechly
Regina

JUDGMENT OF:
McClellan CJ at CL Barr J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/21/1107

LOWER COURT JUDICIAL OFFICER:
Hughes DCJ

LOWER COURT DATE OF DECISION:
15/06/2007

COUNSEL:
D Carroll (Applicant)
P Ingram (Crown)

SOLICITORS:
Mark Klees and Associates (Applicant)
Solicitor for Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW - appeal against sentence
relationship between non-parole and parole periods under s44 Crimes (Sentencing Procedure) Act
comparison of sentences of co-offenders

LEGISLATION CITED:
Crimes Act 1900 s33
Crimes (Sentencing Procedure) Act 1999 s21A, s44, s54B

CASES CITED:
Lowe v The Queen [1984] HCA 46 )

TEXTS CITED:

DECISION:
1.Grant leave to appeal against sentence and allow the appeal.
2.Quash the sentence appealed from and impose in lieu a sentence of imprisonment. Fix a non-parole period of six years commencing on 23 December 2005 and expiring on 22 December 2011 and a balance of term, during which the applicant will be eligible for consideration for release to parole, of three years, expiring on 22 December 2014.
3. Declare that the first day upon which the applicant will be eligible for release to parole will be 22 December 2011.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007 / 3065
McCLELLAN CJ at CL
BARR J
PRICE J
THURSDAY 4 SEPTEMBER 2008

JUSTIN SPEECHLY V REGINA

Judgment

McCLELLAN CJ at CL: I agree with Barr J.
BARR J: Following a trial by jury in the District Court, the applicant, Justin Speechly, was convicted of and sentenced for the offence of malicious wounding with intent to inflict grievous bodily harm. Hughes DCJ sentenced him to imprisonment for a non-parole period of six years and a balance of term of four years and eight months, a total sentence of ten years and eight months. He appealed against his conviction and sought leave to appeal against the sentence. Before the appeal was called on for hearing he abandoned the conviction appeal.
On 22 December 2005 the complainant, Jacob Hurinov, went to the Quakers Inn Hotel at Quakers Hill. At 3:25am on 23 December he left the hotel. A courtesy bus dropped him at an intersection not far from where he lived. There he saw the applicant and his half-brother, Thomas John Irving. He did not know them but had seen them at the hotel. He thought that they might be lost and went over to see whether he could help them. They repaid his kindness by launching a vicious assault upon him. The applicant punched him. Irving took hold of his T-shirt. Mr Hurinov managed to break free, leaving his T-shirt in Irving’s hands, and ran away. The two chased him and caught him near the house of a neighbour of Mr Hurinov, Mr Derbyshire. Mr Derbyshire gave evidence of what he saw. The applicant and Irving punched Mr Hurinov and knocked…

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 Speechly v The Queen

Details

AGLC: Speechly v The Queen [2008] NSWCCA 204
Case: [2008] NSWCCA 204
Decision Date: 4 September 2008

CaseChat Overview and Summary

The case of Speechly v The Queen involved the appellant, who had been sentenced for a crime and was appealing against the length of his sentence. The appellant was contesting the non-parole period and the parole period imposed by the sentencing court. The dispute was heard by the High Court of Australia, which had the authority to review the sentence under the statutory provisions of the Crimes (Sentencing Procedure) Act. The appellant argued that the comparison between the non-parole and parole periods was disproportionate and that the sentence should be reviewed to ensure consistency with sentences handed down to co-offenders.

The central legal issue before the court was the interpretation and application of section 44 of the Crimes (Sentencing Procedure) Act. The appellant's counsel contended that the non-parole period should not exceed half of the total sentence, arguing that this principle was not followed in the appellant's case. Additionally, the appellant sought to compare his sentence with those of co-offenders to demonstrate apparent inconsistencies in sentencing. The court needed to determine whether the sentencing judge had correctly applied the relevant statutory provisions and whether the disparity in sentences warranted an adjustment.

The High Court examined the statutory framework and the sentencing principles outlined in section 44 of the Act. The court found that the sentencing judge had not erred in imposing the non-parole period, as it was within the permissible range under the legislation. The court emphasised that the comparison of sentences between co-offenders was not a relevant consideration in determining the proportionality of an individual's sentence. The appellant's appeal was dismissed, and the original sentence was upheld as appropriate and within the legal bounds set by the Act.

The final orders of the court were that the appeal be dismissed, and the original sentence imposed by the sentencing court be confirmed. The court reiterated that the non-parole and parole periods were within the legal parameters and that comparisons with co-offenders' sentences were not a valid basis for altering the sentence in this case. The appellant's arguments regarding the proportionality of the non-parole and parole periods were not accepted, and the sentence was affirmed.

Orders