NSW Caselaw
New South Wales Court of Criminal Appeal
CITATION: SMALE, Garry Anthony v R [2007] NSWCCA 328 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S): 26 October 2007
JUDGMENT DATE: 29 November 2007
JUDGMENT OF: Mason P at 1; James J at 2; Howie J at 3
DECISION: 1. The appeal against conviction of the charge of murder is dismissed. 2. Leave is granted to appeal against sentence in respect of both sentences. 3. The appeal against the sentence for murder is dismissed. 4. (i) The appeal against the sentence for the armed robbery offence is allowed. (ii) The sentence imposed is quashed. In lieu the appellant is sentenced to imprisonment for 8 1/2 years from 18 March 2002. (iii) There is to be a non-parole period of 6 years 4 months to expire on 17 July 2008.
CATCHWORDS: APPEAL - Conviction appeal - Judge summing up on case not relied upon by the Crown - application of the proviso - Sentence appeal - Ground based on fresh evidence - CRIMINAL LAW - Practice and Procedure - whether address by prosecutor unduly prejudicial - Summing up - case not relied upon by Crown - CRIMINAL LAW - Evidence - Whether evidence of other offences inadmissible or unduly prejudicial - CRIMINAL LAW - Sentence - offender convicted of murder and the included offence - double punishment.
Crimes Act 1900 - ss 18(1), 97(2) Firearms Act 1996 LEGISLATION CITED: Evidence Act 1995 - ss 137, 165 Criminal Appeal Rules - rule 4 Crimes (Sentencing Procedure) Act 1999 - s 21A(3)(j), 23A(3)(j)
R v Sharah (1992) 30 NSWLR 292 Livermore v R [2006] NSWCCA 334 Libke v The Queen [2007] HCA 30; (2007) 81 ALJR 1309 Thorne v R [2007] NSWCCA 10 R v Murray (1987) 11 NSWLR 12 R v Solomon [1980] 1 NSWLR 321 Robinson v R [2006] NSWCCA 192; 162 A Crim R 88 Weiss v The Queen [2005] HCA 81; 224 CLR 300 CASES CITED: R v Deng [2007] NSWCCA 216 R v Fordham (1997) 98 A Crim R 359 R v Henry (1999) 46 NSWLR 346 R v Bo Too (NSWCCA, unreported, 16 July 1992) R v HQ [2003] NSWCCA 336 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Oinonen [1999] NSWCCA 310 R v Stamboulis [2006] NSWCCA 56; 160 A Crim R 510 Pearce v The Queen [1998] HCA 57; 194 CLR 610
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