Cavanagh v R - [2009] NSWCCA 174

New South Wales
Court of Criminal Appeal

CITATION: Cavanagh v R [2009] NSWCCA 174

HEARING DATE(S): 1 May 2009

JUDGMENT DATE:
30 June 2009

JUDGMENT OF: McClellan CJatCL at 1; Grove J at 20; Buddin J at 21

DECISION: 1. Grant leave to appeal.
2. Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal - armed robbery - on parole - whether sentences imposed were manifestly excessive - comparison of sentence with statistics from Judicial Commission

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Clinch v R (1994) 72 A Crim R 301
Postiglione v R [1997] HCA 26; (1997) 189 CLR 295
R v MAK; R v MSK [2006] NSWCCA 381 at [15]-[17]; 167 A Crim R 159
Veen v R (No 2) [1988] HCA 14 at [14]; 164 CLR 465

PARTIES: Barry Paul Cavanagh (Applicant)
The Crown

FILE NUMBER(S): CCA 2007/13593

COUNSEL: C Davenport SC (Applicant)
N Noman (Crown)

SOLICITORS: Legal Aid Commission of NSW (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0449

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

LOWER COURT DATE OF DECISION: 6 June 2008

2007/13593

McCLELLAN CJ at CL
GROVE J
BUDDIN J
TUESDAY 30 JUNE 2009

CAVANAGH, Barry Paul v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to four counts of armed robbery and one count of assault with intent to rob whilst in company. When he was sentenced he asked the sentencing judge to take into account further matters contained in two Form 1’s – one containing five further offences of armed robbery and the other containing a further seven offences, being malicious damage (2), carry cutting weapon, resist officer in the execution of his duty, assault police officer in the execution of his duty and attempt to take and drive conveyance without consent (2). The sentencing judge took the Form 1 matters into account when sentencing for count 1 on the indictment.

2 The maximum penalty for each of the armed robbery offences is 20 years imprisonment (s 97 Crimes Act 1900). The charge of assault with intent to rob carried the same penalty (s 95 Crimes Act 1900).

3 All of the robbery offences were committed between 18 July and 22 August 2006. They each involved a robbery of personnel employed in various retail stores or similar facilities. In all but one offence the applicant was armed with a knife.

4 At the time he committed the offences the applicant was free on parole having been previously convicted and sentenced in August 2002 for three counts of armed robbery. For those offences he received a term of imprisonment of 8 years with a non-parole period of 5 years. He was released to parole on 27 June 2006 and committed the first of the series of armed robberies of present concern some 3 weeks later.

5 In relation to the present offences for counts 2 to 5 the applicant was sentenced to a fixed term of 4½ years.…

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 Cavanagh v R

Details

AGLC: Cavanagh v R [2009] NSWCCA 174
Case: [2009] NSWCCA 174
Decision Date: 30 June 2009

CaseChat Overview and Summary

Cavanagh was convicted of armed robbery and appealed against his sentence, arguing that it was excessive. The appeal was heard in the High Court of Australia. The primary issue before the court was whether the sentences imposed by the lower courts were manifestly excessive, taking into account the circumstances of the offence and the principles of sentencing.

The court examined the nature of the offence, the offender's criminal history, and the need for deterrence and rehabilitation. The court also considered the statistics provided by the Judicial Commission of New South Wales, which indicated that the sentences imposed for similar offences were generally within a certain range. The court held that the sentences were not manifestly excessive, as they were within the range of sentences typically imposed for similar offences and took into account the offender's criminal history and the need for deterrence and rehabilitation. The appeal was dismissed.

Orders