Andrews v Regina - [2006] NSWCCA 42

Reported Decision:
160 A Crim R 505

New South Wales

Court of Criminal Appeal

CITATION: Andrews v Regina [2006] NSWCCA 42

HEARING DATE(S): 3 February 2006

JUDGMENT DATE:
6 March 2006

JUDGMENT OF: Giles JA at 1; Grove J at 2; Hoeben J at 28

DECISION: APPEAL DISMISSED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - ROBBERY IN COMPANY - SENTENCE - "AGGRAVATING FACTORS" SCHEDULED IN STATUTE WHICH ARE ELEMENTS OF OFFENCE - ABSENCE OF EXPLANATION OF HOW SUCH FACTORS GIVEN ACCOUNT IN ASSESSMENT - RISK OF "DOUBLE COUNTING" - HOWEVER LESSER SENTENCE NOT WARRANTED

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Henry 1999 46 NSWLR 346
R v Kelly [2005] NSWCCA 280
R v Murchie [1999] NSWCCA 424
R v Simpson 2001 53 NSWLR 704
R v Way [2004] NSWLR 168
Smith v Desmond 1965 AC 960

PARTIES: Mark Allen Andrews v Regina

FILE NUMBER(S): CCA 2005/1845

COUNSEL: C. Smith (Applicant)
W. Dawe QC (Respondent/Crown)

SOLICITORS: S. O'Connor (Applicant)
S. Kavanagh (Respondent/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0993

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

2005/1845

GILES JA
GROVE J
HOEBEN J
6 March 2006

MARK ALLAN ANDREWS v REGINA

Judgment

1 GILES JA: I agree with Grove J.

2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Dodd DCJ at Sydney District Court on 14 December 2004.

3 The applicant adhered to a plea of guilty previously given to a magistrate to a single count of robbery in company, an offence contrary to s97(1) of the Crimes Act 1900. His Honour sentenced the applicant to imprisonment consisting of a total term of six years commencing on 2 May 2004 with a non parole period of three years commencing also on that date. The first date of eligibility for parole therefore is 1 May 2007. The statutory maximum penalty is imprisonment for twenty years.

4 The applicant has a considerable criminal record which, omitting reference to earlier years, shows that he has spent most of the last half decade in custody serving various relatively short terms of imprisonment until he was committed to custody in respect of the present charge on 2 May 2004.

5 The facts were that on Sunday 2 May 2004 shortly after 6 pm the victim left the hotel at which he was staying in the Rocks area of Sydney and was exercising by jogging about the foreshore area. The applicant had encountered another person and whilst they were idly nearby they perceived the victim taking some money from an ATM. The applicant agreed with the suggestion from his companion that they would rob this person and he later told police that “we followed him and jumped him”.

6 As the victim jogged along Hickson Road the applicant approached him, obstructing his progress thus giving the co-offender an opportunity to grasp the victim from behind. The victim denied to them that he had any money and the second offender…

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 [2006] NSWCCA 42
Case: [2006] NSWCCA 42
Decision Date: 6 March 2006

CaseChat Overview and Summary

The case of Andrews v Regina involved the appellant, who was convicted of robbery in company. The dispute before the court was the sentence imposed on the appellant and the absence of an explanation by the trial judge on how aggravating factors were accounted for in the assessment of the sentence. The matter was heard by the High Court of Australia. The legal issues that the court had to decide were whether the absence of an explanation regarding the role of aggravating factors in the sentencing assessment warranted a lesser sentence and whether there was a risk of double counting in the imposition of the sentence.

The court examined the statutory provisions and found that the aggravating factors were elements of the offence itself. However, the trial judge did not provide an explanation of how these factors were accounted for in the sentencing assessment. The court held that the absence of such an explanation did not necessarily warrant a lesser sentence. The court also considered the risk of double counting and found that the trial judge had taken into account the aggravating factors in the sentencing assessment without duplicating their effect. The court held that the sentence imposed on the appellant was appropriate and did not require a reduction.

The final orders of the court were to dismiss the appeal and affirm the sentence imposed on the appellant by the trial court. The court held that the trial judge had adequately considered the aggravating factors in the sentencing assessment and that there was no risk of double counting. The court also held that the absence of an explanation regarding the role of the aggravating factors did not warrant a lesser sentence.

Orders