McIntyre v R [2009] NSWCCA 305

McIntyre v R [2009] NSWCCA 305

The sentencing Judge erred by taking into account injury to the police officer when assessing the objective seriousness of the s.58 Crimes Act 1900 offence, contrary to the De Simoni principle, and also erred in excluding the possibility of summary disposal on an inappropriate basis. However, the summary disposal point did not assist the Applicant when proper principles were applied, the De Simoni error was minor in context, the sentences were not manifestly excessive, and no lesser sentence was warranted in law under s.6(3) Criminal Appeal Act 1912.

Jurisdiction
Australia
Judgment Date
18 December 2009
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court
Outcome
Leave to appeal granted; appeal against sentence dismissed.
Legal Topics
['assault Occasioning Actual Bodily Harm' 'assault Police Officer in Execution of Duty' 'de Simoni Principle' 'summary Disposal' 'manifest Excessiveness' 'domestic Violence' 'general Deterrence']
['criminal Law' 'sentencing'] ['assault Occasioning Actual Bodily Harm' 'assault Police Officer in Execution of Duty' 'de Simoni Principle' 'summary Disposal' 'manifest Excessiveness' 'domestic Violence' 'general Deterrence']

Case Brief

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentences Imposed in the District Court

Legal Issues

  1. 1 ['Whether the sentencing Judge breached the De Simoni principle by taking into account injury to the police officer when sentencing for the s.58 Crimes Act 1900 offence.' 'Whether the sentencing Judge erred in considering the effect of the availability of summary disposal in the Local Court.' 'Whether the sentences imposed were manifestly excessive.' 'Whether, despite demonstrated error, no lesser sentence was warranted under s.6(3) Criminal Appeal Act 1912.']

Ratio Decidendi

The sentencing Judge erred by taking into account injury to the police officer when assessing the objective seriousness of the s.58 Crimes Act 1900 offence, contrary to the De Simoni principle, and also erred in excluding the possibility of summary disposal on an inappropriate basis. However, the summary disposal point did not assist the Applicant when proper principles were applied, the De Simoni error was minor in context, the sentences were not manifestly excessive, and no lesser sentence was warranted in law under s.6(3) Criminal Appeal Act 1912.

Court Disposition

Leave to appeal granted; appeal against sentence dismissed.

Orders

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