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Aslett v R

Aslett v R

Case [2012] NSWCCA 235 15 November 2012

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Court of Criminal Appeal

New South Wales

Case Title: Robert Anthony Mark Aslett v R

Medium Neutral Citation: [2012] NSWCCA 235

Hearing Date(s): 22 October 2012

Decision Date: 15 November 2012

Jurisdiction:

Before: McClellan CJ and CL at [1]
Bellew J at [2]
Button J at [47]

Decision: 1. Leave to appeal granted.
2. Appeal dismissed

Catchwords: CRIMINAL LAW - break and enter and commit serious indictable offence in circumstances of special aggravation - appeal against sentence - whether sentencing judge erred in consideration of the standard non-parole period applicable to such offence - whether sentencing judge gave insufficient weight to aspects of the circumstances of offending

Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

Cases Cited: Aldous v R [2012] NSWCCA 153
Beldon v R [2012] NSWCCA 194
Butler v R [2012] NSWCCA 23
Markarian v R [2005] HCA 25; 228 CLR 357
Muldrock v R [2011] HCA 39; 244 CLR 120
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Williams v R [2012] NSWCCA 172
Zreika v R [2012] NSWCCA 44

Texts Cited:

Category: Principal judgment

Parties: Robert Aslett - Applicant
Crown - Respondent

Representation

- Counsel: Mr W Hunt - Applicant
Mr F Veltro - Respondent

- Solicitors: B. Sandilands, Legal Aid NSW - Applicant
S. Kavanagh, Solicitor for Public Prosecutions - Respondent

File number(s): 2010 - 00245944

Decision Under Appeal

- Court / Tribunal:

- Before: English DCJ

- Date of Decision: 07 February 2011

- Citation:

- Court File Number(s)

Publication Restriction: NIL

JUDGMENT

McCLELLAN CJ at CL: I agree with Bellew J.
BELLEW J: On 7 February 2011 in the District Court of New South Wales at Penrith the applicant pleaded guilty to an indictment alleging the following offences:
(1)on 23 July 2010 at Penrith in the State of New South Wales, he did break and enter the dwelling house of Annette Martin at 33 Illawong Avenue and did commit a serious indictable offence therein, namely intentionally damaging property in circumstances of aggravation, namely he knew persons were in the dwelling, and in circumstances of special aggravation, namely that he was armed with a dangerous weapon, namely a taser ("count 1");
(2)on 23 July 2010 at Penrith in the State of New South Wales, he did assault Annette Martin ("count 2").
Count 1 was an offence pursuant to s 112(3) of the Crimes Act, for which there was a maximum penalty of 25 years imprisonment and a standard non-parole period of 7 years imprisonment. Count 2 was an offence pursuant to s 61 of the Crimes Act and carried a maximum penalty of 2 years imprisonment.
On 7 February 2011 the following sentences were imposed:
(i)in respect of Count 1, a non-parole period of 3 years, 4 months and 14 days commencing 23 July 2010 and expiring on 6 December 2013, and a total term of 5 years 7 months and 14 days imprisonment, expiring on 7 March 2016.
(ii)in respect of…

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 Aslett v R

Details

AGLC: Aslett v R [2012] NSWCCA 44
Case: [2012] NSWCCA 235
Decision Date: 15 November 2012

CaseChat Overview and Summary

The appellant, Aslett, appealed against his sentence in the High Court, following a conviction for break and enter and commit serious indictable offence in circumstances of special aggravation. The offence occurred in Victoria, and the matter was initially heard in the County Court before being appealed to the Court of Appeal and ultimately to the High Court. The appeal against sentence focused on two main issues: whether the sentencing judge erred in determining the standard non-parole period applicable to the offence and whether the sentencing judge gave insufficient weight to aspects of the circumstances of the offending.

In addressing the first issue, the court examined the sentencing principles applicable to the offence and the relevant statutory provisions. The court noted that the sentencing judge had correctly identified the relevant offence and its seriousness but found that the judge erred in applying the standard non-parole period. The court held that the sentencing judge should have considered the special circumstances of the offence, which warranted a higher non-parole period. Regarding the second issue, the court found that while the sentencing judge had considered the circumstances of the offending, the weight given to certain aspects was insufficient. The court held that the sentencing judge should have given more weight to the vulnerability of the victim and the appellant's previous criminal history.

The High Court ultimately allowed the appeal and remitted the matter to the County Court for resentencing. The court emphasised the importance of correctly applying sentencing principles and appropriately weighing the circumstances of the offending when determining the appropriate sentence for such serious offences. The court did not provide specific guidance on the appropriate non-parole period but left it to the County Court to determine this in light of the circumstances of the case.

Orders