Anderson v The Queen - [2010] NSWCCA 287

New South Wales
Court of Criminal Appeal

CITATION: ANDERSON v R [2010] NSWCCA 287
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11 August 2010

JUDGMENT DATE:
7 December 2010

JUDGMENT OF: McClellan CJatCL at 1; Hulme J at 2; Davies J at 38

DECISION: Leave to appeal granted.
Appeal dismissed.

PARTIES: Karlene ANDERSON
Regina

FILE NUMBER(S): CCA 2007/7892

COUNSEL: Applicant: M Johnson
Respondent: PM Miller

SOLICITORS: Applicant: S O'Connor
Respondent: S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Black DCJ

- 1 -

2007/7892

McCLELLAN CJ AT CL
RS HULME J
DAVIES J

Tuesday, 7 December 2010

Karlene Maree ANDERSON v R

Judgment

1 McCLELLAN CJ AT CL: I agree with RS Hulme J.

On 13 May 2009 an indictment alleging four offences was presented against the Applicant and a co-offender. In summary the charges were:-

(i) That the Applicant and Mark Edward Walsh had, in company with each other, robbed AR;

(ii) That the Applicant did have sexual intercourse with AR without consent and knowing he was not consenting;

(iii) That Mark Edward Walsh did take and drive a conveyance without the consent of the owner AR; and

(iv) That the Applicant knowingly allowed herself to be carried in a conveyance taken without the consent of the owner.

3 Although not all of the relevant material was included in the appeal book, it seems that on 11 May a jury had been empanelled to try these charges but that trial was aborted. On 13 May pleas of guilty were entered to all but the second charge and on 14 May Black QC DCJ commenced a judge-alone trial in respect of that second charge. That trial seems to have been adjourned to 30 July. Some submissions were made on that day and his Honour made a decision which, it is to be inferred, was in favour of the Applicant on that charge. On 31 July proceedings on sentence in respect of the other charges and involving both offenders took place.

4 A matter in issue during the sentencing proceedings was whether a knife had been used during the robbery. Some evidence on the topic had been given during the sexual intercourse trial and the relevant parts of that transcript became exhibit D on sentence. During the sentencing proceedings further evidence was given by the victim and another witness and both the Applicant and Mr Walsh also gave evidence. On 31 July his Honour gave a judgment on the issue of the knife. Proceedings were adjourned and resumed on 18 September 2009 when sentence was passed.

5 The sentences imposed on the Applicant and Mr Walsh in respect of the charges listed above were:-

The Applicant

1. Robbery in company – imprisonment for 4 years including a non-parole period of 2 years and 3 months, both such periods commencing on 10 January 2009; and

2. Knowingly allowing herself to be carried in a conveyance taken…

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 Anderson v The Queen

Details

AGLC: Anderson v The Queen [2010] NSWCCA 287
Case: [2010] NSWCCA 287
Decision Date: 7 December 2010

CaseChat Overview and Summary

The case of Anderson v The Queen involved the appellant, Karlene Maree Anderson, appealing against her sentence for various offences including robbery, sexual assault, and receiving stolen property. The lower court had imposed a sentence of imprisonment for the appellant, while her co-offender, Mark Edward Walsh, received a similar sentence despite having a more extensive criminal history and committing additional offences. The appellant argued that the sentencing judge did not adequately differentiate between her circumstances and those of her co-offender, resulting in an unjustifiable sense of grievance.

The central legal issue in the appeal was whether the sentencing judge had failed to make sufficient allowance for the differences between the appellant and her co-offender, Mark Edward Walsh, in sentencing. The appeal focused on three aspects: the disparity in their criminal histories, the consideration of a Form 1 offence for Mr Walsh, and the subjective circumstances of both offenders.

The Court of Criminal Appeal held that while there were differences between the appellant and her co-offender, these differences did not warrant a markedly different sentence. The sentencing judge had considered the differences, including the appellant's plea discount and efforts to overcome drug addiction, and found that the circumstances did not justify a significant differentiation in penalty. The Court concluded that the sentences imposed were within the sentencing judge's discretion and did not represent a manifest or marked unjustified difference between the offenders. Therefore, the appeal was dismissed, and leave to appeal was granted.

Orders