Biles v The Queen - [2014] NSWCCA 170

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Biles v R [2014] NSWCCA 170
Hearing dates: 4 August 2014
Decision date: 04 August 2014
Before: Bathurst CJ; Adams J; R A Hulme J
Decision:
Leave to appeal against sentence refused

Catchwords: CRIMINAL LAW - appeal against sentence - aggravated break enter and steal - failure to advert to finding of remorse in remarks on sentence did not mean it had been overlooked - objective seriousness of offence enhanced by fact of elderly and vulnerable victims - statistics and schedule of cases of limited utility - leave to appeal refused
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Ehrlich v R [2012] NSWCCA 38; 219 A Crim R 415
Geddes v R [2012] NSWCCA 94
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Campbell [2014] NSWCCA 102
R v Dodd (1991) 57 A Crim R 349
R v Huynh [2005] NSWCCA 220
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Stewart v R [2012] NSWCCA 183
Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584
Category: Principal judgment
Parties: Douglas Biles (Applicant)
Regina (Respondent)
Representation: Counsel:
Ms H Cox (Applicant)
Mr N J Adams (Crown)
Solicitors:
Legal Aid NSW
Solicitor for Public Prosecutions

File Number(s): 2013/1592
Decision under appeal

Date of Decision:

2013-10-09 00:00:00

Before:

Toner SC DCJ

File Number(s):

2013/1592

Judgment

THE COURT: Douglas Biles (the applicant) applies for leave to appeal against a sentence that was imposed upon him in the District Court by his Honour Judge Toner SC on 9 October 2013 for an offence of aggravated break, enter and commit serious indictable offence, namely larceny.

The offence is contrary to s 112(2) of the Crimes Act 1900 (NSW). The maximum penalty is imprisonment for 20 years and there is a standard non-parole period prescribed by the Crimes (Sentencing Procedure) Act 1999 (NSW) of 5 years.

The sentence imposed was one of 5 years 3 months with a non-parole period of 3 years. It was back-dated to the day of the applicant's arrest, 2 January 2013. It was reduced from what it otherwise would have been (7 years) by 25 percent to give credit for the utilitarian value of the applicant's early plea of guilty.

Facts

The victims of the offence, Mr and Mrs Pike, were a couple aged 85 and 70 who lived in Taree. At around 11.40am on 2 January 2013 they were resting in the bedroom of their home. The front security screen door was locked by the main lock in the middle and two bolt locks at the top and bottom. The main timber door was also locked and closed.

Mr Pike heard a noise and when he opened his eyes he saw two males barge into the bedroom towards him and his wife. One…

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 Biles v The Queen

Details

AGLC: Biles v The Queen [2014] NSWCCA 170
Case: [2014] NSWCCA 170
Decision Date: 04 August 2014

CaseChat Overview and Summary

In the matter of Biles v The Queen, the appellant, Biles, appealed against his sentence for aggravated break enter and steal. The case was heard by the High Court of Australia. Biles argued that the trial judge had failed to consider his remorse when imposing sentence, which he contended should have led to a more lenient outcome. The Crown, represented by The Queen, contended that the trial judge had considered the appellant's remorse, and that the severity of the crime warranted the sentence handed down.

The central issue before the court was whether the trial judge had failed to properly consider the appellant's remorse, and if this oversight had the effect of rendering the sentence unjust. The court also considered the objective seriousness of the offence, particularly in light of the fact that the victims were elderly and vulnerable. Additionally, the court addressed the relevance of statistics and prior cases in determining the appropriate sentence.

The High Court found that the trial judge had, in fact, considered the appellant's remorse in the context of the overall circumstances of the case. The court noted that the failure to specifically mention remorse in the sentencing remarks did not mean that it had been overlooked. The court further found that the objective seriousness of the offence was enhanced by the fact that the victims were elderly and vulnerable. While the court acknowledged the potential utility of statistics and prior cases in sentencing, it determined that they were of limited assistance in this particular case. Consequently, the court refused the appellant's application for leave to appeal.

Orders