ANDREWS v R [2007] NSWCCA 68

New South Wales Court of Criminal Appeal

CITATION: ANDREWS v R [2007] NSWCCA 68

HEARING DATE(S): 16 February 2007

JUDGMENT DATE: 16 March 2007

JUDGMENT OF: McClellan CJ at CL at 1; Sully J at 30; Howie J at 31

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Offender of Aboriginal background - Affected by alcohol and drugs at the time of offence - Sentencing - Whether special circumstances ought to have been found - Whether sentence excessive

LEGISLATION CITED: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)

Ceissman v R (2001) 119 A Crim R 535 Hickey (unreported, Court of Criminal Appeal, 27 September 1994) CASES CITED: R v Fernando (1992) 76 A Crim R 58 R v Simpson (2001) 53 NSWLR 704 R v Qutami (2001) 127 A Crim R 369

PARTIES: Ashley James Andrews (Appl) The Crown

FILE NUMBER(S): CCA 2006/2236

COUNSEL: P King (Appl) J Dwyer (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/51/0047

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 1 June 2006

IN THE COURT OF CRIMINAL APPEAL 2006/2236

McCLELLAN CJ at CL SULLY J HOWIE J

FRIDAY 16 MARCH 2007 ANDREWS, Ashley James v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty in the District Court to one count alleging that on 20 February 2004 he maliciously wounded Sharna Michelle Lazer contrary to s 35(1)(a) of the Crimes Act 1900 (NSW). The offence attracted a maximum penalty of 7 years imprisonment. The applicant was sentenced to an overall term of 2 years 3 months, commencing 12 September 2005 and expiring on 11 December 2007, with a non-parole period of 20 months, commencing 12 September 2005 and expiring on 11 May 2007. The sentencing judge allowed a 25% discount for an early plea of guilty but did not find special circumstances. 2 The applicant seeks leave to appeal against his sentence. He relies upon the following grounds: