Duncombe v R [2013] NSWCCA 271

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Duncombe v R [2013] NSWCCA 271 Hearing dates: 21 October 2013 Decision date: 14 November 2013 Before: Hoeben CJ at CL at [1]; Johnson J at [2]; Bellew J at [66] Decision: 1. Application for extension of time to appeal against sentence refused. 2. The Court recommends to the Department of Corrective Services that the Applicant be provided with a proper opportunity to undertake, at the earliest possible time, a custodial program or programs with respect to anger management and violent offending. Catchwords: CRIMINAL LAW - sentence appeal - asserted Muldrock error - application for extension of time in which to appeal - Applicant sentenced in December 2010 - Applicant pleaded guilty to one count of causing grievous bodily harm contrary to s.33(1)(b) Crimes Act 1900 - offence subject to a standard non-parole period - offence of affray taken into account on Form 1 - sole ground of appeal asserted Muldrock error - held that sentencing Judge applied two-stage approach - whether lesser sentence warranted - nature of offence under s.33 - wide gap between maximum penalty of 25 years and standard non-parole period of seven years - attack with sledgehammer to head of victim - offence committed in breach of conditional liberty - limited intellectual capacity of Applicant - held no lesser sentence warranted - insufficient prospects of success - application for extension of time in which to appeal refused Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Firearms Act 1996 Cases Cited: Abdul v R [2013] NSWCCA 247 AM v R [2012] NSWCCA 203 Anderson v R [2008] NSWCCA 211 Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Hamieh [2010] NSWCCA 189 R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 R v Najem [2008] NSWCCA 32 R v Wright [2009] NSWCCA 3 Sproates v R [2009] NSWCCA 29 Thalari v R [2009] NSWCCA 170; 75 NSWLR 307 Texts Cited: --- Category: Principal judgment Parties: Sean Andrew Duncombe (Applicant) Regina (Respondent) Representation: Counsel: Ms BJ Rigg (Applicant) Ms N Noman SC (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2010/11080 Publication restriction: --- Decision under appeal Citation: --- Date of Decision: 2010-12-15 00:00:00 Before: Freeman DCJ File Number(s): 2010/11080