Public Defenders
Criminal Law
Conference 2013
Grounds of Appeal
1. The sentence is manifestly excessive.
2. The sentencing judge erred in making the following findings, that were not
open on the evidence, when assessing the objective gravity of the offence:
(a) in concluding that A “being the oldest, was clearly the ringleader and had
obviously cajoled the other two into committing the offence.”
(b) in concluding, in the absence of a victim impact statement, that the victim
had been “so terrified by the incident… that it was unlikely that he would
ever fully recover from it.”
3. The sentencing judge erred in treating as “aggravating factors”:
(a) the applicant’s prior record and
(b) the fact that the offence was, in effect, “premeditated”.
Grounds of Appeal
4. The sentencing judge erred in characterising the offence as being “a
particularly serious offence of its kind.”
5. The sentencing judge erred in:
(a) taking into account an irrelevant consideration, namely the views of the
Premier and
(b) by doing so in preference to Judicial Commission statistics and decided
authority, such as R v Henry (1999) 46NSWLR 346.
Grounds of Appeal
6. The sentencing judge erred in failing to take into account relevant
considerations which ought to have mitigated the otherwise appropriate
penalty:
(a) by treating the applicant’s youth (he had just turned 18) as “all but
irrelevant because this offence is typically committed by young men.”
(b) by allowing a discount of only 5% for the utilitarian value of the plea of
guilty and in having regard to the strength of the Crown case in
determining the extent of that discount.
(c) in placing “almost no weight” on the evidence of A’s mother (concerning
the issues of remorse and rehabilitative prospects) because it was only
what “one would expect a mother to say to get her son out of trouble.”
(d) in concluding that A’s prospects of rehabilitation were bleak because of
his prior record and his decision not to give evidence.
(e) in apparently ignoring the fact that A had acted under duress.
Grounds of Appeal
7. The sentencing judge erred in concluding that the sentences imposed upon
co-offenders B and C were “completely irrelevant… because they had been
dealt with in the Children’s Court” with the result that A has a “justifiable
grievance” arising from the sentence imposed upon him.
8. The sentencing judge erred in declining to find “special circumstances”
without providing reasons for having done so.
Public Defenders
Criminal Law
Conference 2013