Medium Neutral Citation: Walsh v R [2020] NSWCCA 183
Hearing dates: 16 June 2020
Date of orders: 5 August 2020
Decision date: 05 August 2020
Before: Johnson J at [1];
Wright J at [2];
Wilson J at [3].
Decision:
(1)   Grant an extension of time in which to file a Notice of Appeal to 14 April 2020;
(2)   Grant leave to appeal;
(3)   Dismiss the appeal.

Catchwords:
CRIME – Sentence after trial – charge of wounding with intent to cause grievous bodily harm – application for extension of time – leave to appeal against sentence – traumatic and dysfunctional childhood – mental illness – long term drug addiction – prior record for offences of violence – whether special circumstances should have been found – whether non-parole period should have been reduced – whether sentence is manifestly excessive

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
AM v R [2012] NSWCCA 203; (2012) 225 Crim R 481
Aslan v R [2014] NSWCCA 114
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DJM v R [2013] NSWCCA 101
Goodbun v R [2020] NSWCCA 77
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kandemir v R [2018] NSWCCA 154
Magro v R [2020] NSWCCA 25
RLS v R [2012] NSWCCA 236
R v Bobak [2005] NSWCCA 320
R v Carter [2003] NSWCCA 243
R v Fidow [2004] NSWCCA 172
R v Kirkland [2005] NSWCCA 130
R v Lulham [2016] NSWCCA 287
R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94
R v Simpson (2001) NSWLR 704; [2001] NSWCCA 534
R v Zoef [2005] NSWCCA 268
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Principal judgment
Parties: Joshua Walsh (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Crawford-Fish (Applicant)
G Newton (Respondent)
Solicitors:
Andrew Harris & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2018/39364
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

5 June 2018

Before:

O’Rourke SC DCJ

File Number(s):

2018/39364

Judgment

JOHNSON J: I agree with Wilson J.
WRIGHT J: I agree with Wilson J.
WILSON J: On 13 September 2019, the applicant, Joshua Walsh, was sentenced by her Honour Judge O’Rourke SC in the District Court at Sydney for an offence of wounding with intent to cause grievous bodily harm. Her Honour imposed a sentence of 9 years and 4 months imprisonment with a non-parole period of 7 years imprisonment. The sentence commenced on 5 June 2018, and expires on 4 October 2027; the non-parole period (“NPP”) expires on 4 June 2025.
The applicant seeks leave to appeal the sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).…

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 Walsh v The Queen

Details

AGLC: Walsh v The Queen [2020] NSWCCA 183
Case: [2020] NSWCCA 183
Decision Date: 05 August 2020

CaseChat Overview and Summary

The appellant, Walsh, was charged with wounding with intent to cause grievous bodily harm. Following a trial, he was convicted and sentenced. Walsh sought leave to appeal against the sentence imposed by the court. The central issues for the court were whether the sentencing judge had failed to find special circumstances warranting a lower sentence, whether the non-parole period should have been reduced, and if the sentence was manifestly excessive. The court examined the appellant's background, including a traumatic and dysfunctional childhood, mental illness, and long-term drug addiction, alongside a prior record for offences of violence.

The court considered the appellant's personal circumstances, including his traumatic upbringing and mental health issues, alongside his history of drug addiction and violent offending. Despite these factors, the court noted that the appellant had been involved in violent incidents and had a history of non-compliance with court orders. The court determined that, while the appellant's background was indeed challenging, it did not constitute special circumstances warranting a lower sentence. Additionally, the court held that the non-parole period was appropriate and that the overall sentence was not manifestly excessive.

Ultimately, the court found that the appellant's background, while tragic, did not warrant a reduction in sentence. The court held that the sentencing judge had appropriately considered the appellant's circumstances and that the sentence imposed was fair and just. Walsh's application for leave to appeal against sentence was dismissed. The court emphasised that, while the appellant's background was unfortunate, it did not excuse his criminal conduct. The sentence imposed was considered appropriate and not manifestly excessive.

Orders