Book v R - [2018] NSWCCA 58

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Book v R [2018] NSWCCA 58
Hearing dates: 21 March 2018
Date of orders: 11 April 2018
Decision date: 11 April 2018
Before: Bathurst CJ [1]
Johnson J at [2]
Price J at [69]
Decision:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – offence of aggravated (in company) break, enter and commit serious indictable offence (stealing) contrary to s.112(2) Crimes Act 1900 – custodial sentence imposed – whether sentence manifestly excessive – assessment of objective seriousness of offence – relevance of offence being committed in company and stealing being the serious indictable offence – prior criminal history included commission of s.112(2) offence – sentence not manifestly excessive – appeal dismissed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Marshall v R [2007] NSWCCA 24
Obeid v R (2017) 350 ALR 103; [2017] NSWCCA 221
R v Huynh [2005] NSWCCA 220
R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435
White v R [2016] NSWCCA 190
Texts Cited: ---
Category: Principal judgment
Parties: John David Book (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr CJ Bruce SC (Applicant)
Ms T Smith (Respondent)
Solicitors:
Smythe Wozniak Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/168343
Publication restriction: ---
Decision under appeal

Court or tribunal:

Bathurst District Court

Jurisdiction:

---

Citation:

---

Date of Decision:

12 December 2016

Before:

His Honour Judge Blackmore SC

File Number(s):

2016/168343

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of Johnson J in draft. I agree with the orders proposed by his Honour and with his reasons.
JOHNSON J: The Applicant, John David Book, seeks leave to appeal with respect to a sentence imposed at the Bathurst District Court on 12 December 2016 for an offence of aggravated (in company) break, enter and commit serious indictable offence (stealing) contrary to s.112(2) Crimes Act 1900.
Following a plea of guilty, the Applicant was sentenced by his Honour Judge Blackmore SC to a term of imprisonment of two years and eight months commencing on 7 November 2016 and expiring on 6 July 2019, with a non-parole period of one year and eight months expiring on 6 July 2018. The maximum penalty for this offence is 20 years’ imprisonment with a standard-non parole period of five years.
By Notice of Application for Leave to Appeal filed on 12 January 2018, the Applicant relies upon a single ground of appeal that the sentence imposed is manifestly excessive.

Facts of Offence

An Agreed Statement of Facts was tendered at the sentencing hearing which revealed…

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 Book v R

Details

AGLC: Book v R [2018] NSWCCA 58
Case: [2018] NSWCCA 58
Decision Date: 11 April 2018

CaseChat Overview and Summary

Book was convicted and sentenced for committing an aggravated break, enter and commit a serious indictable offence, namely stealing, in company, in breach of section 112(2) of the Crimes Act 1900. The case was appealed to the court on the basis that the sentence imposed was manifestly excessive. The primary legal issues before the court were whether the sentence was manifestly excessive and the objective seriousness of the offence, particularly considering the offence was committed in company and involved stealing as the serious indictable offence. The court also considered the appellant's prior criminal history, which included a previous offence under section 112(2) of the Crimes Act 1900.

The court determined that the sentence was not manifestly excessive. It examined the objective seriousness of the offence and noted the presence of aggravating factors such as the commission of the offence in company and the nature of the serious indictable offence, which was stealing. Despite these factors, the court found that the sentence imposed was appropriate and within the range of penalties that could be considered reasonable and just for the offence. The court also took into account the appellant's prior criminal history, which included a previous offence under section 112(2) of the Crimes Act 1900. Ultimately, the court concluded that the sentence was not manifestly excessive and dismissed the appeal.

Given the reasoning above, the court dismissed the appeal against the sentence imposed on the appellant. The court confirmed that the sentence was appropriate and did not constitute a manifestly excessive punishment for the offence committed. The appellant's prior criminal history and the nature of the offence were considered in the overall assessment, leading to the conclusion that the sentence was justified. The appeal was therefore unsuccessful.

Orders