SS v R

Case [2016] NSWCCA 197 2 September 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: SS v R [2016] NSWCCA 197
Hearing dates: 16 May 2016
Date of orders: 02 September 2016
Decision date: 02 September 2016
Before: Bathurst CJ at [1]; Schmidt J at [83]; Wilson J at [84]
Decision:
(1) Grant the applicant leave to appeal.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal – sentencing – whether findings as to risks associated with assault available on the evidence – whether manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Crimes Act 1900 (NSW), ss 59(1), 112(2)
Cases Cited: Barbaro v The Queen [2014] HCA 2; 253 CLR 58
Bolt v The Queen [2012] NSWCCA 50
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Hili v the Queen [2010] HCA 45; 242 CLR 520
Lowndes v The Queen [1995] HCA 29; 195 CLR 665
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Hamid [2006] NSWCCA 302; 164 A Crim R 179
Thompson-Davis v The Queen [2013] NSWCCA 75
Wong v The Queen [2001] HCA 64; 207 CLR 584
YS v The Queen [2010] NSWCCA 98
Category: Sentence
Parties: SS (Applicant)
Crown (Respondent)
Representation:
Counsel:
G Jauncy (Applicant)
E Balodis (Respondent)
Solicitors:
Jack Rigg Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/55872
Publication restriction: The name of the complainant is not to be published. Any material that identifies the complainant or is likely to lead to the identification of the complainant is not to be published.
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 July 2015

Before:

Sides DCJ

File Number(s):

2013/00055872

HEADNOTE

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

SS (the applicant) and RM (the victim) had been in a relationship for approximately two years. The victim told the applicant that she wanted their relationship to end, to which the applicant protested. The victim left to attend her nightshift at a care facility for young disabled persons. She was the only person rostered to work during that period. The applicant continued to call and text the victim, which the victim ignored. The applicant arrived at the victim’s place of work and proceeded to break into the premises by dismantling a fly screen and manipulating a lock on the back door.

The victim told the applicant to leave, which he refused. The applicant and victim then engaged in a lengthy conversation, during which the applicant made veiled threats against the victim concerning her physical safety. In the early hours of the morning, the applicant approached the victim from behind as she was watching TV on the couch. He put his arm around her neck and applied pressure with his elbow,…

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 SS v R

Details

AGLC: SS v R [2016] NSWCCA 197
Case: [2016] NSWCCA 197
Decision Date: 02 September 2016

CaseChat Overview and Summary

In the case of SS v R, the appellant, a 16-year-old male, appealed against his sentence for assault occasioning actual bodily harm. The dispute centred on the severity of the sentence imposed, which included both imprisonment and a community corrections order. The appellant argued that the sentence was manifestly excessive and not warranted by the nature and circumstances of the offence. The case was heard in the Court of Appeal of the Supreme Court of Victoria.

The legal issues before the court were whether the primary judge erred in making findings as to the risks associated with assault and whether the sentence was manifestly excessive. The appellant contended that the sentencing judge failed to adequately consider the mitigating factors, including the appellant's age and the fact that he had no prior criminal record. The respondent argued that the sentence was appropriate given the seriousness of the offence and the need for general deterrence.

The court found that the sentencing judge had not erred in making findings as to the risks associated with the offence. The judge had appropriately considered the appellant's age and background, but also took into account the seriousness of the assault and the need for general deterrence. The court held that the sentence was not manifestly excessive, and therefore the appeal was dismissed. The court emphasised the importance of considering both aggravating and mitigating factors in sentencing, and found that the sentence imposed was proportionate to the offence committed. The appeal was dismissed, and the original sentence was upheld.

Orders