Porter v R [2015] NSWCCA 59

Porter v R [2015] NSWCCA 59

No sentencing error was shown. The sentencing judge was not obliged to accept the applicant's account that shots were fired merely because no Crown witness was called, and the finding that the applicant believed an air rifle was involved was open and favourable to him. The judge's comments about Chen v R, read fairly and in context, did not show that he treated the Chen sentence as binding. The judge took the applicant's mental health and background into account but was also required to consider punishment, deterrence, community protection, the maximum penalty and the standard non-parole period. Given the seriousness of attending a residential property at night with a machete and wounding...

Jurisdiction
Australia
Judgment Date
10 April 2015
Procedural Posture
Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Appeal From Sentence Imposed in the District Court of New South Wales
Outcome
Application for leave to appeal granted; appeal dismissed.
Legal Topics
['wounding With Intent to Cause Grievous Bodily Harm' 'mental Illness in Sentencing' 'general Deterrence' 'agreed Facts on Sentence' 'manifest Excess' 'use of Comparable Cases']
['criminal Law' 'sentencing' 'practice and Procedure'] ['wounding With Intent to Cause Grievous Bodily Harm' 'mental Illness in Sentencing' 'general Deterrence' 'agreed Facts on Sentence' 'manifest Excess' 'use of Comparable Cases']

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Procedural Posture

Application for Leave to Appeal Against Sentence / Court of Criminal Appeal; Appeal From Sentence Imposed in the District Court of New South Wales

Legal Issues

  1. 1 ["Whether the sentencing judge erred by failing to make critical factual findings about the applicant's evidence that Jake Stannard fired an air rifle." 'Whether the sentencing judge erred by concluding that he was bound to follow Chen v R [2011] NSWCCA 85.' 'Whether the sentencing judge failed to have regard to principles applicable to sentencing a person with a mental illness.' 'Whether the sentence was manifestly excessive in the unusual circumstances of the case.']

Ratio Decidendi

No sentencing error was shown. The sentencing judge was not obliged to accept the applicant's account that shots were fired merely because no Crown witness was called, and the finding that the applicant believed an air rifle was involved was open and favourable to him. The judge's comments about Chen v R, read fairly and in context, did not show that he treated the Chen sentence as binding. The judge took the applicant's mental health and background into account but was also required to consider punishment, deterrence, community protection, the maximum penalty and the standard non-parole period. Given the seriousness of attending a residential property at night with a machete and wounding...

Court Disposition

Application for leave to appeal granted; appeal dismissed.

Orders

  • ['Grant application for leave to appeal.' 'Appeal dismissed.']