Towney v The The King - [2022] NSWCCA 289

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Towney v R [2022] NSWCCA 289
Hearing dates: 9 December 2022
Date of orders: 15 December 2022
Decision date: 15 December 2022
Before: Davies J at [1]
Ierace J at [2]
R A Hulme AJ at [3]
Decision:
(1)   Leave to appeal against sentence granted.
(2)   Appeal allowed.
(3)   Vary the aggregate sentence of 4 years and 6 months with a non-parole period of 3 years imposed in the District Court on 19 August 2021 by specifying that it is to date from 28 November 2020.

Catchwords:
CRIME — sentence — appeal against sentence — error in backdating sentence of imprisonment — Crown conceded the error — contention it was necessary to re-exercise the sentencing discretion — held error did not affect sentencing discretion — intervention limited to correction of the error

Legislation Cited:
Crimes Act 1900 (NSW), s 35(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(a), 47(1)-(3)
Criminal Appeal Act 1912 (NSW), s 6(3)
Criminal Procedure Act 1986 (NSW), ss 166, 168(3)
Firearms Act 1996 (NSW), s 62(1)(b)

Cases Cited:
Almaouie v R [2021] NSWCCA 274
Huynh v R [2022] NSWCCA 45
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 40
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255

Category: Principal judgment
Parties: Guyra Towney (Applicant)
Rex (Respondent)
Representation:
Counsel:
J Brock (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/136507
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

19 August 2021

Before:

King SC DCJ

File Number(s):

2020/136507

JUDGMENT

DAVIES J: I agree with R A Hulme AJ.
IERACE J: I also agree with R A Hulme AJ.
R A HULME AJ: Guyra Towney applies for leave to appeal in respect of an aggregate sentence imposed in the District Court on 19 August 2021 by his Honour Judge King SC.
The sentence was one of imprisonment for 4 years, 6 months with a non-parole period of 3 years. It was imposed following the applicant pleading guilty to offences of recklessly causing grievous bodily harm and possession of a shortened firearm (not a pistol). The latter offence was on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).
The following table sets out details of the offences, including the maximum penalties and standard non-parole period where applicable, as well as the indicative sentences assessed by the judge which followed a reduction of 25% on account of the applicant’s early pleas of guilty.

Reckless grievous bodily harm

Crimes Act 1900 (NSW), s 35(2).

Max penalty: 10 years

SNPP: 4 years

4 years with NPP of 2 years, 6 months

Possess shortened firearm (not pistol) without authority

Firearms Act 1996 (NSW), s 62(1)(b)

Max penalty: 14 years, but pursuant to s 168(3) of the Criminal Procedure Act, the jurisdictional limit is 2 years.

18 months

Mr Towney…

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 Towney v The The King

Details

AGLC: Towney v The The King [2022] NSWCCA 289
Case: [2022] NSWCCA 289
Decision Date: 15 December 2022

CaseChat Overview and Summary

The case involved the appellant, Towney, who had been sentenced to a term of imprisonment by the Supreme Court of New South Wales. Towney appealed against his sentence, arguing that there was an error in the backdating of his imprisonment term. The Crown conceded the error but argued that it was necessary to re-exercise the sentencing discretion. The High Court of Australia was asked to determine whether the error in backdating the sentence required a re-exercise of the sentencing discretion by the court.

The central legal issue was whether the error in backdating the sentence necessitated a re-exercise of the court's sentencing discretion. The Crown's argument was that the error in backdating the sentence required the court to re-exercise its discretion in order to correct the error. The appellant, Towney, contended that the error did not affect the court's sentencing discretion and that the intervention should be limited to the correction of the error. The court had to decide whether the error in backdating the sentence required a re-exercise of the sentencing discretion or whether the intervention should be limited to the correction of the error.

The Court held that the error in backdating the sentence did not affect the court's sentencing discretion. The Court noted that the sentence imposed by the trial judge was valid, and the error in backdating did not alter the substantive aspects of the sentence. The Court held that the intervention should be limited to the correction of the error. The Court emphasised that the correction of the error did not require a re-exercise of the sentencing discretion, as the sentence imposed by the trial judge was valid in all other respects. The Court held that the error in backdating the sentence did not affect the court's sentencing discretion and that the intervention should be limited to the correction of the error.

The Court ordered that the sentence imposed by the trial judge be corrected to reflect the correct backdating of the term of imprisonment. The Court did not order a re-exercise of the sentencing discretion, as the sentence imposed by the trial judge was valid in all other respects. The Court's decision clarified the legal principles surrounding the correction of errors in backdating sentences and the limits of judicial intervention in such cases.

Orders