Ward JA at [1] Harrison J at [2] R A Hulme J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal allowed.
3. Quash the sentences imposed in the District Court and, in lieu, impose an aggregate sentence of 8 years 9 months with a non-parole period of 6 years. The sentence is to date from 20 October 2010. The earliest day the applicant will be eligible for release on parole is 20 October 2016.
Category:
Principal judgment
Parties:
CM (Applicant) Regina (Respondent)
Representation:
Counsel: Mr C Bruce SC (Applicant) Ms S Dowling SC (Crown)
Solicitors: Legal Aid NSW Solicitor for Public Prosecutions
File Number(s):
2010/348039
Decision under appeal
Jurisdiction:
9101
Date of Decision:
26 October 2012
Before:
Maiden SC DCJ
File Number(s):
2010/348039
Judgment
WARD JA: I agree with R A Hulme J.
HARRISON J: I agree with R A Hulme J.
R A HULME J: CM ("the applicant") seeks leave to appeal against sentences imposed upon him by his Honour Judge Maiden SC in the District Court at Newcastle on 26 October 2012.
The applicant had pleaded guilty to a charge of armed robbery and had been found guilty at trial of two further armed robberies; a robbery; and an attempted robbery.
Armed robbery is an offence contrary to s 97(1) of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 20 years. Robbery is an offence against s 94 and the maximum penalty is imprisonment for 14 years. No standard non-parole period is prescribed for either offence.
The judge imposed a total effective sentence of nine years with a minimum custodial component of seven years, dating from 20 October 2010. The applicant will become eligible for release on parole on 20 October 2017. The individual offences and sentences were as follows:
1. Robbery - Woolworths Liquor, Kotara on 5 April 2010: sentenced to three years with a non-parole period of two years dating from 20 October 2010.
2. Armed robbery - IGA store, Telarah on 6 April 2010: sentenced to four years with a non-parole period of three years dating from 20 October 2012.
3. Attempted robbery - Edgeworth Post Office, Edgeworth on 14 May 2010: sentenced to two years ten months with a non-parole period of two years dating from 20 October 2012.
4. Armed robbery - East Maitland Pharmacy on 14 May 2010: sentenced to six years with a non-parole period of four years dating from 20 October 2013.
5. Armed robbery - The General Roberts Hotel, New Lambton on 10 October 2010: sentenced to five years with a non-parole period of three years dating from 20 October 2014.
A number of offences listed on Form 1 documents were taken into account in sentencing for the second, fourth and fifth matters. For the second and fourth matter there was a…
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 CM v R
Sign in free to access the full text
Details
AGLC
CM v R [2013] NSWCCA 341
Case
[2013] NSWCCA 341
Decision Date
CaseChat Overview and Summary
CM applied for leave to appeal against the sentence imposed by the District Court, arguing that it was manifestly excessive and that there had been an error in the application of the discount for assistance to authorities. The Court of Criminal Appeal granted leave to appeal and allowed the appeal, quashing the sentences imposed and substituting an aggregate sentence of 8 years 9 months with a non-parole period of 6 years. The Court found that the sentence for the last offence was not manifestly excessive but did find errors in the application of the discount for assistance to authorities and in the failure to give effect to the finding of special circumstances in the overall sentence. The Court held that the aggregate sentencing provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) should have been used, and that the discount for assistance should have been applied to all of the sentences. The Court also noted that the total sentence, when the discount was taken into account, was not manifestly excessive. The Court imposed a new sentence of 8 years 9 months with a non-parole period of 6 years, effective from 20 October 2010.