Garth v R [2016] NSWCCA 203

Garth v R [2016] NSWCCA 203

Section 25A(2) of the Crimes Act creates an offence punishable by law independent of section 25B; the mandatory minimum sentence provision does not operate as a penalty-creating provision and is severable. Constitutional questions about s 25B need not be determined as the indictment discloses an offence to which punishment attaches.

Parties
Applicant: Hugh Bacalla Garth; First Respondent: Crown; Second Respondent: Attorney-General for New South Wales
Jurisdiction
Australia
Judgment Date
22 September 2016
Procedural Posture
Criminal Appeal / Application for Leave to Appeal From District Court Decision
Outcome
leave to appeal refused
Legal Topics
Assault Causing Death, Mandatory Minimum Sentencing, Constitutionality of Sentencing Provisions, Interpretation of Offence Creating Provisions
Criminal Law Constitutional Law Assault Causing Death Mandatory Minimum Sentencing Constitutionality of Sentencing Provisions Interpretation of Offence Creating Provisions

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Parties

Hugh Bacalla Garth

Applicant

Crown

First Respondent

Attorney-General for New South Wales

Second Respondent

Procedural Posture

Criminal Appeal / Application for Leave to Appeal From District Court Decision

Legal Issues

  1. 1 Whether section 25A(2) of the Crimes Act 1900 (NSW) creates an offence known to law
  2. 2 Whether determination of constitutional question regarding s 25B is necessary
  3. 3 Whether mandatory minimum sentence provision is severable from the offence

Ratio Decidendi

Section 25A(2) of the Crimes Act creates an offence punishable by law independent of section 25B; the mandatory minimum sentence provision does not operate as a penalty-creating provision and is severable. Constitutional questions about s 25B need not be determined as the indictment discloses an offence to which punishment attaches.

Court Disposition

leave to appeal refused

Orders

  • Leave to appeal refused