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Allen v R

Allen v R

Case [2015] NSWCCA 113 27 May 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Allen v R [2015] NSWCCA 113
Hearing dates: 20 May 2015
Decision date: 27 May 2015
Before: Hoeben CJ at CL at [1]
R A Hulme J at [42]
Beech-Jones J at [43]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – demand money with menaces and assault with intent to rob while armed with an offensive weapon – whether sentencing judge should have found “special circumstances” – discretionary finding of fact – no “House v R” error – appeal dismissed.
Legislation Cited: Crimes Act 1900 – s 97(1), s 99
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Caristo v R [2011] NSWCCA 7
House v R [1936] HCA 40; 55 CLR 499
Jayde Farrell v R [2012] NSWCCA 245
Jiang v R [2010] NSWCCA 277
MD v R [2015] NSWCCA 37
PK v R [2012] NSWCCA 263
Power v R [1974] HCA 26; 131 CLR 623
R v Carter [2003] NSWCCA 243
R v Cramp [2004] NSWCCA 264
R v Fidow [2004] NSWCCA 172
R v GWM [2012] NSWCCA 240
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Sellars [2010] NSWCCA 133
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Tuuta [2014] NSWCCA 40
Trad v R [2009] NSWCCA 56; 194 A Crim R 20
Category: Principal judgment
Parties: Rhys James Allen – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Applicant in person
S Dowling SC – Respondent Crown
Solicitors:
Applicant in person
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2014/16661
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

26 June 2014

Before:

Wilson SC DCJ

File Number(s):

2014/16661

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty to:

Count 1 – Demand money with menaces contrary to s 99 Crimes Act 1900 (maximum penalty imprisonment for 10 years).

Count 2 – Assault with intent to rob while armed with an offensive weapon contrary to s 97(1) Crimes Act 1900 (maximum penalty imprisonment for 20 years).

On 26 June 2014 Wilson DCJ sentenced the applicant as follows:

Count 1 – Imprisonment for a fixed term of 9 months, commencing 17 January 2014 and expiring 16 October 2014.

Count 2 – Imprisonment with a non-parole period of 2 years and 8 months commencing 17 April 2014 and expiring 16 December 2016 with a balance of term of 1 year and 1 month expiring 16 January 2018.

The total sentence was imprisonment for 4 years with a non-parole period of 2 years and 11 months.

Factual background

At about 6am on 17 January 2014 the applicant was a passenger in a motor vehicle which drove to the intersection of Market and Boulder Streets in Fingal Bay. The applicant alighted from the vehicle and went towards shops in Market Street with the hood of his jacket over his head and his face…

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 Allen v R

Details

AGLC: Allen v R [2015] NSWCCA 113
Case: [2015] NSWCCA 113
Decision Date: 27 May 2015

CaseChat Overview and Summary

The case of Allen v R concerned the appellant, who was convicted for committing two offences: demanding money with menaces and assault with intent to rob while armed with an offensive weapon. The appellant sought to appeal against the sentence imposed by the sentencing judge. The legal issues before the court were whether the sentencing judge should have found "special circumstances" and if there was any error in the discretionary findings of fact. The court had to determine if the sentencing judge's decision was subject to a "House v R" error, which refers to an error of law in the determination of a fact that is crucial to the sentence.

The court examined the sentencing judge's findings and concluded that there was no "House v R" error. The sentencing judge had carefully considered the evidence and the applicable legal principles in reaching the conclusion that no special circumstances were present. The court found that the sentencing judge's assessment of the facts and the weight to be given to them was within the permissible range of outcomes. As such, the discretionary findings of fact made by the sentencing judge were not so unreasonable as to amount to an error of law.

In light of the above findings, the appeal was dismissed. The court held that the sentencing judge had properly exercised their discretion in determining the sentence, and there were no grounds for the appellant's appeal. The court's decision upheld the original sentence imposed by the sentencing judge, and no further action was required in relation to the sentence.

Orders