Andrews v Regina - [2011] NSWCCA 24

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Andrews v Regina [2011] NSWCCA 24
Hearing dates: 23 August 2010
Decision date: 28 February 2011
Before: Beazley JA
James J
Hall J
Decision:
(1) The application for leave to appeal is granted.
(2) The applicant is to be re-sentenced to a non-parole period of 2 years and 6 months commencing 27 August 2009 and to expire on 26 February 2012 with a parole period of 2 years and 6 months to expire on 26 August 2014.
(3) The appeal otherwise be dismissed.

Catchwords: SENTENCE APPEAL - Break and enter in circumstances of aggravation - intellectual disability and poor impulse control - relevant to objective seriousness but not expressly taken into account in determining the objective seriousness of the offence - considered in context of subjective factors - sentencing within reasonable range - leave granted to account for pre-sentence custody - pre-sentence custody to be taken into account - pre-sentence custody referrable solely to subject offence - five days pre-sentence should have been taken into account - subject to that matter appeal against sentence dismissed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Regina v Newman & Simpson (2004) 145 A Crim R 361
Regina v Way (2004) 60 NSWLR 168
Category: Principal judgment
Parties: SHANE ANDREWS v REGINA
Representation: Counsel:
C: N Gouda
A: G Brady/M McMahon
Solicitors:
C: S Kavanagh
A: S O'Connor

File Number(s): 2008/1402
Decision under appeal

Date of Decision:

2009-09-01 00:00:00

Before:

Syme DCJ

File Number(s):

2008/1402

Judgment

BEAZLEY JA: I agree with Hall J.

JAMES J: I agree with Hall J.

HALL J: The applicant, Shane Andrews, seeks leave to appeal against the sentence imposed upon him in the District Court at Penrith on 1 September 2009.

On 24 April 2009, the applicant pleaded guilty to one count of break, enter and commit a serious indictable offence (indecent assault) in circumstances of aggravation (knowing persons at home). The offence was one under s.112(2) of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment and has a prescribed standard non-parole period of 5 years imprisonment.

The hearing in the District Court was the third time the trial had been listed, two previous trial dates having been vacated.

On 1 September 2009, her Honour Judge Syme sentenced the appellant to a non-parole period of 2 years and 6 months to commence on 1 September 2009 and to expire on 29 February 2012 with a balance of 2 years and 6 months to commence on 1 March 2012 and to expire on 31 August 2014 (being a total term of 5 years). The applicant is eligible for release to parole on 29 February 2012.

The non-parole period accordingly was 50% of the total term imposed on the applicant.

Facts

The factual matters were set out in a statement of agreed facts which were summarised in the Crown's written submissions dated 16 August 2010. The following is based…

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 Andrews v Regina

Details

AGLC: Andrews v Regina [2011] NSWCCA 24
Case: [2011] NSWCCA 24
Decision Date: 28 February 2011

CaseChat Overview and Summary

In the case of Andrews v Regina, the appellant was convicted of breaking and entering a dwelling in circumstances of aggravation. The appeal before the court was against the sentence imposed, with the appellant arguing that the original sentence was excessive. The High Court of Australia was tasked with reviewing the sentence to determine whether it was within the reasonable range and whether certain factors were adequately considered.

The central legal issues revolved around whether the sentence was excessive, particularly in light of the appellant's intellectual disability and poor impulse control, and whether the pre-sentence custody should have been taken into account in determining the appropriate sentence. The court was also required to assess whether the sentence fell within the reasonable range and if the trial judge adequately considered all relevant factors, both objective and subjective, in arriving at the sentence.

The court found that, although the trial judge did not expressly take into account the appellant's intellectual disability and poor impulse control in determining the objective seriousness of the offence, these factors were considered in the context of the subjective factors. The court held that the sentence was within the reasonable range and did not constitute an error of law. However, the court did find that the trial judge should have taken into account five days of pre-sentence custody, which was referrable solely to the subject offence. As a result, the appeal against the sentence was dismissed, subject to the matter of the pre-sentence custody being taken into account.

Orders