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Allen v The Queen

Allen v The Queen

Case [2013] NSWCCA 173 24 July 2013

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Court of Criminal Appeal

New South Wales

Case Title: Allen v R

Medium Neutral Citation: [2013] NSWCCA 173

Hearing Date(s): 15 July 2013

Decision Date: 24 July 2013

Before: Hoeben CJ at CL at [1]
McCallum J at [4]
Schmidt J at [32]

Decision:
Time within which the notice of application for leave to appeal may be filed extended; leave to appeal be granted; that the appeal be dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - aggravated break and enter with intent - whether manifestly excessive

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1900

Cases Cited: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
In the matter of the Attorney-General's Application [No 1] under s 26 of the Criminal Appeal Act; R v Ponfield & Ors [1999] NSWCCA 435; (1999) 48 NSWLR 327
Kean v R [2011] NSWCCA 136

Category: Principal judgment

Parties: Warren Allen (applicant)
Regina (respondent)

Representation

- Counsel: Counsel:
K H Averre (Applicant)
V Lydiard (Crown)

- Solicitors: Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2011/57590

Decision Under Appeal

- Before: Coolahan DCJ

- Date of Decision: 01 September 2011

- Court File Number(s): 2011/57590

Publication Restriction: None

JUDGMENT

Hoeben CJ at CL: I agree with McCallum J.
In an application for leave to appeal based on a ground of manifest excess, it is not particularly helpful to make submissions based on a decision of this Court in another case, the facts of which appear to be similar. As McCallum J has made clear in her analysis of the decision in Kean v R [2011] NSWCCA 136, the facts of that case were quite different to the facts in this case, albeit there appeared to be a superficial similarity. As her Honour pointed out, a significant point of distinction was that two offences were involved in that case so that apart from anything else, the principal of totality rendered its comparison with this case of limited value.
It needs to be remembered that sentencing involves the exercise of a broad discretion by the primary judge. There is no right or wrong sentence. There is a range of sentences which is appropriate for a particular offence or offences. Provided a sentence is within that range, and it has not otherwise been established that the sentence is "unreasonable or plainly unjust", this Court should not interfere. That would be the situation even if the facts in Kean had been identical to the facts in this case."
McCallum J: Warren Allen seeks leave to appeal against the sentence imposed upon him in the District Court after he pleaded guilty to an offence of breaking and entering a dwelling house and committing a serious indictable offence (stealing) in circumstances of aggravation, contrary to section 112(2) of the Crimes Act 1900. The circumstance of aggravation was that he knew there were people inside the dwelling house.
The maximum penalty for the aggravated offence is 20 years…

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 The Queen

Details

AGLC: Allen v The Queen [2013] NSWCCA 173
Case: [2013] NSWCCA 173
Decision Date: 24 July 2013

CaseChat Overview and Summary

The case of Allen v The Queen involved an appeal by the defendant against his sentence for an aggravated break and enter with intent. The appellant had been convicted for breaking into a property with intent to commit an indictable offence and causing damage. The appellant's actions were deemed to be aggravated by the fact that he had been armed with a knife. The appeal was heard by the High Court of Australia.

The central legal issue before the court was whether the sentence imposed on the appellant was manifestly excessive. The appellant's counsel argued that the sentence was disproportionate to the offence committed, and that it failed to take into account the appellant's youth and background. The Crown argued that the sentence was appropriate and reflected the seriousness of the offence.

The court held that the sentence was not manifestly excessive. The court noted that the appellant's offending was serious and that the sentence reflected the need to protect the community from further offending by the appellant. The court also noted that the sentence took into account the appellant's background and circumstances, and that it was not appropriate to interfere with the sentence imposed by the trial judge. The court found that the sentence was within the range of sentences that could be imposed for the offence, and that it was not manifestly excessive.

The appeal was dismissed. The court ordered that the appellant's sentence of imprisonment for a term of six years and eight months, with a non-parole period of four years and three months, be upheld. The appellant was also ordered to pay a fine of $2,000.

Orders