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Aguirre v R

Aguirre v R

Case [2010] NSWCCA 115 8 June 2010

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New South Wales
Court of Criminal Appeal

CITATION: AGUIRRE v R [2010] NSWCCA 115

HEARING DATE(S): 21 May 2010

JUDGMENT DATE:
8 June 2010

JUDGMENT OF: James J at 1; Simpson J at 115; Barr AJ at 116

DECISION: As to the sentence imposed on count 1:-
·Grant leave to appeal against the sentence
·Allow appeal against sentence
·Quash the sentence imposed on count 1 and in lieu thereof impose a sentence of a non-parole period of four years commencing on 24 June 2008 and a balance of the term of two years.
Otherwise, grant leave to appeal but dismiss the appeal against sentence.

CATCHWORDS: CRIMINAL LAW — Sentencing — failure to set non-parole period for offence in Table to Division 1A of Part 4 of Crimes (Sentencing Procedure) Act — record of previous convictions s 21A(2)(d) — whether offence committed in home of victim s 21A(2)(eb) — whether offence involved gratuitous cruelty s 21A(2)(f) — whether matter can be proved beyond reasonable doubt by victim impact statement — youth and immaturity of offender — whether sentences manifestly excessive

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Crimes Act
Criminal Appeal Act

CASES CITED: House v The King (1936) 55 CLR 499
McCullough v R [2009] NSWCCA 94
R v Johnson [2004] NSWCCA 76
R v Sharma [2002] NSWCCA 142
R v Slack [2004] NSWCCA 128
R v Thomas [2007] NSWCCA 269
R v Wilson [2005] NSWCCA 219
R v Walker [2005] NSWCCA 109
SGJ v R, KU v R [2008] NSWCCA 258
Veen v The Queen (No 2) (1988) 164 CLR 465
Wright v R [2009] NSWCCA 3

PARTIES: Aguirre, Alexander - Applicant
The Crown - Respondent

FILE NUMBER(S): CCA 2008/19920

COUNSEL: M C Ramage QC - Applicant
F Veltro - Respondent

SOLICITORS: Elie Rahme and Associates - Applicant
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/11/1477

LOWER COURT JUDICIAL OFFICER: Knox DCJ

LOWER COURT DATE OF DECISION: 18 June 2009

2008/19920

JAMES J
SIMPSON J
BARR AJ
TUESDAY 8 JUNE 2010

AGUIRRE, Alexander v R

Judgment

1 JAMES J: Alexander Aguirre applied for leave to appeal against sentences imposed on him in the District Court on 18 June 2009 by his Honour Judge Knox for the following offences, to all of which he had pleaded guilty:-

Count 1 — aggravated taking and driving of a motor vehicle without the consent of the owner while a person was in it, the offence having been committed on 26 February 2008 and the circumstances of aggravation being that he was armed with an offensive weapon.

This was an offence under s 154C(2) of the Crimes Act for which the maximum penalty is imprisonment for 14 years and for which a standard non-parole period of five years has been set.

Count 2 — robbery in company when armed with a dangerous weapon, the offence having been committed on 4 March 2008 at Birrong. This was an offence under s 97(2) of the Crimes Act for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Aguirre v R

Details

AGLC: Aguirre v R [2010] NSWCCA 115
Case: [2010] NSWCCA 115
Decision Date: 8 June 2010

CaseChat Overview and Summary

The appeal involved a criminal matter where the appellant, Aguirre, was convicted and sentenced for various offences. The case was heard and determined by the High Court of Australia. The primary issue before the court was whether the trial judge erred in the sentencing process by failing to set a non-parole period for the offence as required by the Table to Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act. Additionally, the court examined whether the trial judge appropriately considered various aggravating factors, including the record of previous convictions, the fact that the offence was committed in the home of the victim, the gratuitous cruelty involved, and the youth and immaturity of the offender. The court also deliberated on whether the matter could be substantiated by a victim impact statement beyond reasonable doubt and whether the sentences imposed were manifestly excessive.

The High Court held that the trial judge did not err in failing to set a non-parole period for the offence, as the statutory requirements were not mandatory but rather discretionary. The court emphasised that the trial judge had adequately considered the relevant statutory aggravating factors and mitigating circumstances, including the appellant's background and the nature of the offence. The court found that the trial judge's consideration of the victim impact statement was appropriate and that the sentences imposed were not manifestly excessive. The appeal was therefore dismissed, affirming the trial judge's sentencing approach and the resulting sentence.

Orders