Regina v Mitchell, Regina v Gallagher [2007] NSWCCA 296

Reported Decision: 177 A Crim R 94

New South Wales Court of Criminal Appeal

CITATION: Regina v Mitchell, Regina v Gallagher [2007] NSWCCA 296

HEARING DATE(S): 22/08/2007

JUDGMENT DATE: 22 October 2007

JUDGMENT OF: Giles JA at 1; Howie J at 2; Fullerton J at 56

DECISION: In respect of each respondent the Crown appeal is allowed. The sentences imposed in the District Court are quashed. In the case of the respondent Mitchell he is sentenced to a term of imprisonment made up of a non-parole period of 7 years with a balance of term of 5 years to date from 19 July 2006. He is eligible to be considered for release to parole on 18 July 2013. In the case of the respondent Gallagher he is sentenced to a term of imprisonment comprising a non-parole period of 5 years and a balance of term of 4 years 4 months to date from 5 March 2007. He is eligible to be considered for release to parole on 4 March 2012.

CATCHWORDS: Criminal Law - Sentencing - Crown appeal against sentence - maliciously inflict grievous bodily harm with intent - objective seriousness described as "at least mid-range" - error in assessing objective seriousness - offence above mid-range seriousness - discount for plea of guilty and remorse - sentences manifestly inadequate - respondents resentenced.

LEGISLATION CITED: Crimes Act 1900 - ss 33, 35 Crimes (Sentencing Procedure) Act 1999 - ss 3A, 21A

R v MAK and MSK (2006) 167 A Crim R 159 R v Wall [2002] NSWCCA 42 R v Camilleri (NSWCCA, unreported, 2 February 1990) R v Swan [2006] NSWCCA 47 R v Mirza [2007] NSWCCA 248 CASES CITED: R v Knight [2007] NSWCCA 283 R v Henry (1999) 46 NSWLR 346 Waters v R [2007] NSWCCA 219 R v AJP (2004) 150 A Crim R 575 R v Marshall [2007] NSWCCA 24 R v Muleto [2006] NSWCCA 282 R v Jione [2007] NSWCCA 170