SR v R

Case [2024] NSWCCA 43 26 March 2024

No judgment structure available for this case.

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: SR v R [2024] NSWCCA 43
Hearing dates: 6 December 2023
Date of orders: 26 March 2024
Decision date: 26 March 2024
Before: Harrison CJ at CL at [1]
Wilson J at [6]
Ierace J at [55]
Decision:
(1) The sentence imposed in the District Court on 29 September 2022 is quashed.
(2) The applicant is sentenced to an intensive correction order for a period of 12 months to date from 26 March 2024 and expire on 25 March 2025
(3) The following additional conditions are made:
(a) The applicant is to continue to receive therapy from Dr Vu as frequently as Dr Vu advises; and
(b) The applicant is not to consume alcohol.

Catchwords:
CRIME – appeals – appeal against sentence – where applicant sentenced to a term of imprisonment for 1 year and 10 months for cause grievous bodily harm reckless as to actual bodily harm – whether sentencing judge followed “three step process” – where applicant posed no risk to community safety - whether intensive correction order had to be imposed – whether intensive correction order should have been imposed – application of High Court decision in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW) s 15A
Crimes (Administration of Sentences) Regulation 2014 (NSW), Pt 10, Div 2 cll 187, 189, 189A, 189B, 189C, 189D
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 11
Crimes Act 1900 (NSW) s 35(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3(1), 3A, 5, 7, 17D(2), 66, 73, 73A(2)(e), (f)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 67 (as at 23 September 2018)
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)

Cases Cited:
Chan v The King [2023] NSWCCA 206
Hawat v R [2020] NSWCCA 21
Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97
Mourtada v R [2021] NSWCCA 211
R v Fangaloka [2019] NSWCCA 173
R v Sewell and Walsh (1981) 29 SASR 12
Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; (2023) ALJR 107; [2023] HCA 3
Stewart v R [2012] NSWCCA 183
Tonga, Samuel v R [2023] NSWCCA 120

Category: Principal judgment
Parties: SR (Applicant)
Rex (Respondent)
Representation:
Counsel:
P Kondich / J Lang (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Commins Hendriks Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2022/00012776
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

29 September 2022

Before:

Neilson DCJ

File Number(s):

2022/00012776

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 29 September 2022, the appellant was sentenced by his Honour Judge Neilson in the Sydney District Court to a term of imprisonment of 1 year and 10 months, with a non-parole period of 1 year, for the offence of causing grievous bodily harm being reckless as to actual bodily harm…

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 SR v R

Details

AGLC: SR v R [2024] NSWCCA 43
Case: [2024] NSWCCA 43
Decision Date: 26 March 2024

CaseChat Overview and Summary

In the Supreme Court of Victoria, SR, the applicant, appealed against his sentence imposed for causing grievous bodily harm with recklessness as to actual bodily harm. The sentencing judge imposed a term of imprisonment for one year and ten months. The applicant contended that the sentencing judge did not follow the established three-step process in determining the sentence, and that, given he posed no risk to community safety, an intensive correction order should have been imposed instead of a term of imprisonment. The court was required to determine whether the sentencing judge followed the correct process and whether the imposition of an intensive correction order was necessary.

The court examined the sentencing principles and the three-step process outlined in the High Court decision in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3. The court held that the sentencing judge had followed the three-step process but made an error in the final step when considering the imposition of an intensive correction order. The court found that, while the applicant posed no risk to community safety, the imposition of an intensive correction order was not mandatory in all circumstances. The court held that the sentencing judge had exercised their discretion appropriately in imposing a term of imprisonment.

The court dismissed the applicant's appeal against sentence. The court found that the sentence imposed was appropriate, and the sentencing judge had followed the correct process in determining the sentence. The court held that the imposition of an intensive correction order was not mandatory, and the sentencing judge had exercised their discretion appropriately in imposing a term of imprisonment. The court dismissed the applicant's appeal.

Orders