(3) Sentence imposed by King DCJ on 17 June 2009 in respect of an offence contrary to s 35(2) of the Crimes Act 1900 is quashed.
(4) In lieu thereof the applicant is sentenced to a non-parole period of imprisonment of 1 year and 6 months to commence on 1 February 2009 and expire on 31 July 2010. The balance of term is 1 year and 6 months to commence on 1 August 2010 and expire on 31 January 2012.
Catchwords:
CRIMINAL LAW - Recklessly causing grievous bodily harm - Sentencing - Whether accused denied procedural fairness by failure to warn of increase from "tentative" view during submissions - Resentence
Thomas Herbert Weir (Applicant) Crown (Respondent)
Representation:
Counsel: D Barrow (Applicant) V Lydiard (Respondent) Solicitors: Legal Aid Commission (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):
2009/011124
Decision under appeal
Jurisdiction:
9101
Citation:
R v Thomas Herbert Weir
Date of Decision:
2010-06-17 00:00:00
Before:
King DCJ
File Number(s):
2009/11124
Judgment
MACFARLAN JA : I agree with Garling J.
JOHNSON J : I agree with Garling J.
GARLING J: The applicant, Thomas Herbert Weir, seeks leave to appeal against the sentence imposed upon him by his Honour Judge King on 17 June 2010 in the District Court of NSW at Campbelltown.
Mr Weir had pleaded guilty to two offences. The first offence was that contrary to s 35(2) of the Crimes Act1900 he had recklessly caused grievous bodily harm to Wayne O'Connor on 1 February 2009. The second offence was that on the same day at Waterloo he had, contrary to s 195(1)(a) of the Crimes Act intentionally or recklessly destroyed property, namely the front door of premises in Morehead Street, Waterloo, which was the property of the Department of Housing NSW.
For the first offence of recklessly causing grievous bodily harm, the legislation imposed a maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years. For the second offence of intentionally or recklessly destroying property the legislation imposed a maximum penalty of 5 years. It did not fix any standard non-parole period.
On 17 June 2010, Mr Weir was sentenced to the following terms of imprisonment:
(a) On the first count of recklessly causing…
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.
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Details
AGLC
Weir v R [2011] NSWCCA 123
Case
[2011] NSWCCA 123
Decision Date
CaseChat Overview and Summary
The matter of Weir v R was heard in the High Court of Australia. The accused, Weir, was convicted of recklessly causing grievous bodily harm to another person. The primary issue before the court was whether the accused was denied procedural fairness during his original sentencing hearing by the failure of the sentencing judge to warn him of the potential shift from a "tentative" view during submissions to a firm view that would lead to a more severe sentence. This issue arose from the accused's argument that he was misled about the potential consequences of the judge's view changing during the sentencing process.
The court considered whether the sentencing judge was required to explicitly warn the accused of the possibility that a tentative view might evolve into a firm view, potentially resulting in a harsher sentence. The court examined the principles of procedural fairness and the expectations of the parties in a sentencing hearing. It held that while there is no absolute requirement for the sentencing judge to provide such a warning, the judge must ensure that the accused is aware of the potential outcomes of the submissions being made. The court found that in this case, the accused was not sufficiently informed of the potential consequences of the judge's view changing, thus denying him procedural fairness.
In light of the finding of procedural unfairness, the court ordered that the accused be resentenced by a different judge. The High Court determined that the original sentence was not to be disregarded, but rather that the accused should be given the opportunity to be properly informed of the potential outcomes during the resentencing process. The court's decision emphasised the importance of procedural fairness in criminal sentencing proceedings and the need for clear communication between the sentencing judge and the accused.