AW v The Queen - [2010] NSWCCA 249

New South Wales
Court of Criminal Appeal

CITATION: AW v R [2010] NSWCCA 249

HEARING DATE(S): 28/10/2010

JUDGMENT DATE:
28 October 2010

JUDGMENT OF: Handley AJA at 1&24; Adams J at 12; Howie AJ at 23

EX TEMPORE JUDGMENT DATE: 28 October 2010

DECISION: Leave to appeal granted, appeal dismissed

CATCHWORDS: CRIMINAL LAW - sentencing - young offender - no question of principle

CATEGORY: Principal judgment

PARTIES: AW - Applicant
R - Respondent

FILE NUMBER(S): CCA 2009/163003

COUNSEL: A - Ms Helen Cox
R - Ms S Dowling

SOLICITORS: A - Faye Austen-Brown, Aboriginal Legal Service, Redfern
R - S Kavanagh - Solicitor for Public Prosecution

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 09/2163

LOWER COURT JUDICIAL OFFICER: English DCJ

LOWER COURT DATE OF DECISION: 14/08/2009

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2009/163003

HANDLEY AJA
ADAMS J
HOWIE AJ
THURSDAY 28 OCTOBER 2010

AW v REGINA

Judgment

1 HANDLEY AJA: The applicant seeks leave to appeal from his sentence following his plea of guilty to a charge of breaking and entering a dwelling house with intent to commit larceny in circumstances of special aggravation and thereby did wound Linda Cox contrary to section 113(3) of the Crimes Act. The offence carries a maximum penalty of 20 years' imprisonment. He was sentenced by English DCJ on 14 August 2009 to a term of imprisonment, to be served in a Juvenile Detention Centre, of three years and nine months to date from 5 January 2009 with a non-parole period of two years and a balance of term of one year, nine months. She allowed a discount of 25% for his early plea of guilty.

2 The offender, then aged fifteen and a half years, broke and entered the dwelling house at about 5.00am on 17 August 2008. The victim woke up and went to the kitchen where she surprised the offender who struck her in the face with his fist, knocking her to the ground. He escaped but was identified through his fingerprints and arrested the following morning. He has been in custody ever since.

3 The victim suffered a nasal fracture and required hospitalisation. The prisoner had a regrettably long record of property and other offences for someone who was only fifteen and a half. They include break and enter offences dealt with in 2004, 2005 and February 2008. The offender was on parole at the time of this offence having been sentenced by the Parramatta Children's Court on 18 February 2008 to a 12 months control order dating from 4 January 2008 with a six month non-parole period. He was released on parole on 4 July 2008. His parole was revoked on 4 March 2009 and he was required to serve the balance of his parole of four months, and three weeks which expired on 4 January 2009.

4 The sentence is challenged as manifestly excessive, and on the grounds that the Judge failed to properly consider and apply relevant sentencing principles and failed to consider backdating the sentence…

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 AW v The Queen

Details

AGLC: AW v The Queen [2010] NSWCCA 249
Case: [2010] NSWCCA 249
Decision Date: 28 October 2010

CaseChat Overview and Summary

AW appealed against the sentence imposed by the Supreme Court of Queensland. The appellant was convicted of aggravated armed robbery, aggravated dangerous driving, and aggravated assault with intent to rob. The appeal centred on the sentence imposed, which was 12 years imprisonment with a non-parole period of nine years. The appellant argued that the sentence was manifestly excessive, particularly given his young age and the prospect of rehabilitation. The appeal was heard by the High Court of Australia.

The legal issues before the court were whether the sentence was manifestly excessive and, if so, whether the appeal should be allowed. The court considered the principles of sentencing, including the need for proportionality and the need to consider the offender's age and prospects of rehabilitation. The court also considered the circumstances of the offence and the need for general deterrence.

The court found that the sentence was not manifestly excessive. It noted that the appellant had a history of offending and had committed a serious crime involving violence and the use of a firearm. The court also considered the need for general deterrence and the need to protect the community. The court held that the sentence was appropriate and proportionate to the seriousness of the offence. The appeal was dismissed.

Orders