Ebsworth v R [2020] NSWCCA 229

Ebsworth v R [2020] NSWCCA 229

The sentencing judge did not err by referring to the acts leading up to and surrounding the choking. Those facts accurately described the circumstances and context of the offences, were used to identify a connected course of conduct on 30 September 2017 and to allow significant concurrency for totality, and were not used to punish the applicant for an uncharged or more serious offence. The De Simoni ground failed because the judge did not find that the choking was done with intent to kill or to enable another indictable offence, and the objective seriousness ground depended on the failed Grounds 1 and 2. The appeal was therefore dismissed, although an extension of time and leave to appeal...

Jurisdiction
Australia
Judgment Date
11 September 2020
Procedural Posture
Criminal Sentence Appeal / Application for Extension of Time and Leave to Appeal Against Sentence
Outcome
Extension of time granted; leave to appeal granted; appeal dismissed.
Legal Topics
['domestic Violence Offences' 'assault Occasioning Actual Bodily Harm' 'aggravated Break, Enter and Commit Serious Indictable Offence' 'use Offensive Weapon With Intent to Assault' 'contravention of Apprehended Violence Order' 'form 1 Offences' 'de Simoni Principle' 'objective Seriousness' 'totality']
['criminal Law' 'sentencing'] ['domestic Violence Offences' 'assault Occasioning Actual Bodily Harm' 'aggravated Break, Enter and Commit Serious Indictable Offence' 'use Offensive Weapon With Intent to Assault' 'contravention of Apprehended Violence Order' 'form 1 Offences' 'de Simoni Principle' 'objective Seriousness' 'totality']

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Procedural Posture

Criminal Sentence Appeal / Application for Extension of Time and Leave to Appeal Against Sentence

Legal Issues

  1. 1 ['Whether the sentencing judge erred by taking into account conduct which was not the conduct relied upon in support of Count 1.' 'Whether the sentencing judge sentenced the applicant for a more serious, uncharged offence contrary to The Queen v De Simoni.' 'Whether the sentencing judge erred in assessing the objective seriousness of Count 1 by making the alleged erroneous findings raised in Grounds 1 and 2.' 'Whether an extension of time should be granted for the Notice of Application for Leave to Appeal against Sentence.']

Ratio Decidendi

The sentencing judge did not err by referring to the acts leading up to and surrounding the choking. Those facts accurately described the circumstances and context of the offences, were used to identify a connected course of conduct on 30 September 2017 and to allow significant concurrency for totality, and were not used to punish the applicant for an uncharged or more serious offence. The De Simoni ground failed because the judge did not find that the choking was done with intent to kill or to enable another indictable offence, and the objective seriousness ground depended on the failed Grounds 1 and 2. The appeal was therefore dismissed, although an extension of time and leave to appeal...

Court Disposition

Extension of time granted; leave to appeal granted; appeal dismissed.

Orders

  • ['Extension of time granted to allow the Notice of Application for Leave to Appeal to be filed on 27 May 2020.' 'Leave to appeal granted.' 'Appeal dismissed.']