R. v. POWELL [2000] NSWCCA 108

R. v. POWELL [2000] NSWCCA 108

The sentencing judge erred because, although the applicant's disadvantaged upbringing, entrenched alcohol problem and Aboriginal reserve background were before the court, her remarks did not deal with the applicant's entrenched pattern of disadvantage or apply the Fernando principles. The Court therefore re-sentenced the applicant, maintaining the seriousness of the malicious wounding but finding compelling special circumstances and improved rehabilitation prospects, and reduced the minimum term for malicious wounding.

Jurisdiction
Australia
Judgment Date
13 March 2000
Procedural Posture
Criminal Sentence Appeal / Application for Extension of Time and Leave to Appeal Against Severity of Sentence in the New South Wales Court of Criminal Appeal
Outcome
Sentence reduced; extension of time and leave to appeal granted; appeal against sentence for malicious wounding allowed; appeals against sentence on the common assault counts dismissed.
Legal Topics
['malicious Wounding' 'common Assault' 'breach of Apprehended Domestic Violence Order' 'domestic Violence' 'fernando Principles' 'aboriginal Disadvantage' 'alcohol Related Offending' 'special Circumstances' 'rehabilitation']
['criminal Law' 'sentencing' 'criminal Appeals'] ['malicious Wounding' 'common Assault' 'breach of Apprehended Domestic Violence Order' 'domestic Violence' 'fernando Principles' 'aboriginal Disadvantage' 'alcohol Related Offending' 'special Circumstances' 'rehabilitation']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Extension of Time and Leave to Appeal Against Severity of Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether an extension of time and leave to appeal against sentence should be granted.' 'Whether the sentencing judge erred by failing to consider and apply the principles referred to in R. v. Fernando 76 A Crim R. 58.' "Whether the sentence for malicious wounding was excessive or should be reduced having regard to the applicant's entrenched disadvantage, alcoholism, health, rehabilitation prospects and the objective gravity of the offences."]

Ratio Decidendi

The sentencing judge erred because, although the applicant's disadvantaged upbringing, entrenched alcohol problem and Aboriginal reserve background were before the court, her remarks did not deal with the applicant's entrenched pattern of disadvantage or apply the Fernando principles. The Court therefore re-sentenced the applicant, maintaining the seriousness of the malicious wounding but finding compelling special circumstances and improved rehabilitation prospects, and reduced the minimum term for malicious wounding.

Court Disposition

Sentence reduced; extension of time and leave to appeal granted; appeal against sentence for malicious wounding allowed; appeals against sentence on the common assault counts dismissed.

Orders

  • ['Extend time for leave to appeal. Leave to appeal granted.' 'Appeals against sentence on each of the counts of common assault dismissed.' 'Appeal against sentence on count of malicious wounding allowed.' 'In lieu of the sentence imposed the applicant is sentenced to a minimum term of imprisonment of 2 years 6...