BH v R [2016] NSWCCA 290

BH v R [2016] NSWCCA 290

The sentencing judge's finding that the applicant struck the deceased out of anger rather than fear was reasonably open on the whole of the evidence, including the CCTV, the force and location of the punch, the ages of the applicant and deceased, the applicant's boxing training, anger management problems, prior violence, custodial conduct, flight and concealment, and the accepted racial remark. The sentence of 5 years and 3 months with a non-parole period of 3 years and 11 months was not manifestly unreasonable or plainly unjust given the seriousness of the manslaughter, the applicant's conditional liberty and prior violence, despite his youth, disadvantage, remorse and rehabilitation...

Jurisdiction
Australia
Judgment Date
07 December 2016
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['manslaughter' 'guilty Plea' 'juvenile Offender' 'factual Findings on Sentence' 'motivation for Offence' 'manifest Excess' 'conditional Liberty' "children's Criminal Proceedings"]
['criminal Law' 'sentencing'] ['manslaughter' 'guilty Plea' 'juvenile Offender' 'factual Findings on Sentence' 'motivation for Offence' 'manifest Excess' 'conditional Liberty' "children's Criminal Proceedings"]

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge sentenced the applicant on the basis of factual findings about motivation that were not reasonably open on the evidence.' 'Whether the sentence for manslaughter was manifestly excessive.' 'Whether the sentencing judge erred in assessing objective seriousness, declining to find special circumstances, or declining to make an order under s 19(3) of the Children (Criminal Proceedings) Act 1987 (NSW).']

Ratio Decidendi

The sentencing judge's finding that the applicant struck the deceased out of anger rather than fear was reasonably open on the whole of the evidence, including the CCTV, the force and location of the punch, the ages of the applicant and deceased, the applicant's boxing training, anger management problems, prior violence, custodial conduct, flight and concealment, and the accepted racial remark. The sentence of 5 years and 3 months with a non-parole period of 3 years and 11 months was not manifestly unreasonable or plainly unjust given the seriousness of the manslaughter, the applicant's conditional liberty and prior violence, despite his youth, disadvantage, remorse and rehabilitation...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']