Th v R

[2019] NSWCCA 184

NSW Court of Criminal Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Criminal Law
2. › Appeals
3. › Appeal against sentence
4. › Factual findings by sentencing judge
5. › Whether finding consistent with jury's verdict
6. › Whether finding open on the evidence
7. › Standard of proof beyond reasonable doubt
8. › Crimes Act 1900 (NSW), s 61M
1. Criminal Law
2. › Sentencing
3. › Factual findings relevant to objective seriousness
4. › Contested factual issue bearing on measure of seriousness
5. › Approach to disputed facts after jury trial
6. › Whether sentencing judge's view of facts must be consistent with jury verdict
1. Criminal Law
2. › Appeals
3. › Appeal against sentence
4. › Challenge to factual finding by sentencing judge
5. › Competing approaches within NSWCCA
6. › R v O'Donoghue approach versus Clarke v R approach
7. › Whether error demonstrated under either approach

Quick Take

A sentencing judge's factual finding adverse to an offender, made beyond reasonable doubt, will be upheld on appeal where it is consistent with the jury's verdict and supported by the evidence, regardless of whether the traditional O'Donoghue approach or the broader Clarke/Hordern approach is applied. The division of opinion within the NSWCCA on the correct approach to challenging sentencing judges' factual findings remains unresolved.