Porter v R [2015] NSWCCA 59

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Porter v R [2015] NSWCCA 59 Hearing dates: 2 April 2015 Decision date: 10 April 2015 Before: Simpson J at [1] Harrison J at [7] Adamson J at [8] Decision: (1) Grant application for leave to appeal. (2) Appeal dismissed. Catchwords: CRIMINAL LAW – application for leave to appeal against sentence for wounding with intent to cause grievous bodily harm – s 33(1)(a) Crimes Act 1900 (NSW) – evidence by applicant that he was shot at with air rifle – sentencing judge not obliged to accept applicant's evidence – infelicitous and gratuitous observation by sentencing judge did not, on fair reading of remarks on sentence, reveal error in approach to relevance of decisions of Court of Criminal Appeal – no error demonstrated in taking into account general deterrence when applicant has established mental illness – depends on facts and circumstances – no manifest excess demonstrated PRACTICE AND PROCEDURE – importance of identifying facts that are agreed for the purposes of sentencing and distinguishing them from facts in respect of which there is a dispute to be resolved by evidence adduced at the sentence hearing Legislation Cited: Crimes Act 1900 (NSW), s 33(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 32, 44(2) Cases Cited: Chen v R [2011] NSWCCA 85 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 R v Engert (1995) 84 A Crim R 67 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Rudd [2010] NSWCCA 71 Category: Principal judgment Parties: Brogan Porter (Applicant) Regina (Respondent) Representation: Counsel: A Francis (Applicant) N Williams (Respondent)