Cohen v R - [2011] NSWCCA 165

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cohen v R [2011] NSWCCA 165
Hearing dates: 20 July 2011
Decision date: 28 July 2011
Before: Allsop P at 1; Simpson J at 2; Buddin J at 72
Decision:
1. Leave to appeal granted;
2. Appeal allowed in respect of count 1;
3. The applicant be re-sentenced as follows:
Count 2: imprisonment for 4 years, comprised of a non-parole period of 2 years and 6 months commencing on 21 July 2010 and expiring on 20 January 2013, with a balance of term of 1 year and 6 months, expiring on 20 July 2014;
Count 1: imprisonment for a term of 4 years, comprised of a non-parole period of 2 years commencing on 21 January 2011 and expiring on 20 January 2013, with a balance of term of 2 years, expiring on 20 January 2015.

Catchwords: CRIMINAL LAW - application for leave to appeal against severity of sentence - break and enter of a school by applicant and younger brother - property stolen - arson - fire lit to destroy bloodstain left by applicant - extensive damage caused by fire - at liberty on bail at time of offences - error in finding that aggravated break enter and steal of mid-range of objective gravity - assessment influenced by greater objective seriousness of arson offence - failure to make appropriate allowance for special circumstances - leave granted - appeal allowed - applicant re-sentenced
CRIMINAL LAW - particular offences - s 112(2) Crimes Act aggravated break enter and commit serious indictable offence - s 195(1)(b) intentionally causing damage to property by fire
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Huynh [2005] NSWCCA 220
R v McDonald, (unreported, 12 October 1998)
R v Silver [1999] NSWCCA 108.
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Category: Principal judgment
Parties: Thomas Cohen (Applicant)
Regina (Respondent)
Representation: H Cox (Applicant)
J Pickering/T Smith (Respondent)
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/219081
Decision under appeal

Date of Decision:

2010-09-20 00:00:00

Before:

Woods ADCJ

File Number(s):

2009/219081

Judgment

ALLSOP P: I agree with Simpson J.

SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court at Dubbo on 20 September 2010, following his pleas of guilty to two counts on an indictment.

The first count was of aggravated break enter and commit serious indictable offence and, pursuant s 112(2) of the Crimes Act 1900, carries a maximum penalty of imprisonment for 20 years. Pursuant to Part 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") a standard non-parole period of 5 years is prescribed (for offences in the mid-range of objective gravity). The "serious indictable offence" was larceny. The circumstance…

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 Cohen v R

Details

AGLC: Cohen v R [2011] NSWCCA 165
Case: [2011] NSWCCA 165
Decision Date: 28 July 2011

CaseChat Overview and Summary

Cohen and another were charged with offences arising from their break and enter into a school. Cohen and his brother stole property from the school and set fire to the premises in an attempt to destroy evidence of the break and enter. Cohen's brother pleaded guilty, and Cohen was convicted of aggravated break enter and commit serious indictable offence, intentionally causing damage to property by fire, and other related offences. Cohen was sentenced to 13 years' imprisonment. Cohen appealed against the severity of his sentence. The Court of Appeal found that the primary judge erred in concluding that the aggravated break enter and steal offence was in the mid-range of objective seriousness. The Court found that the primary judge had failed to make appropriate allowance for special circumstances, including Cohen's age, immaturity, and vulnerability. The Court concluded that the sentence was manifestly inadequate. Leave to appeal was granted, and the appeal was allowed. Cohen was re-sentenced to 8 years' imprisonment.

The primary judge had made an error in finding that the aggravated break enter and steal offence was in the mid-range of objective seriousness. The Court held that the assessment of the seriousness of the aggravated break enter and steal offence was influenced by the greater objective seriousness of the arson offence. The Court concluded that the primary judge failed to make appropriate allowance for special circumstances, including Cohen's age, immaturity, and vulnerability. The Court held that the sentence was manifestly inadequate. The Court of Appeal allowed Cohen's appeal against the severity of his sentence and re-sentenced him to 8 years' imprisonment.

Orders