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Collon v R

Collon v R

Case [2009] NSWCCA 187 29 July 2009

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New South Wales
Court of Criminal Appeal

CITATION: Collon v R [2009] NSWCCA 187

HEARING DATE(S): 8/07/2009

JUDGMENT DATE:
29 July 2009

JUDGMENT OF: McClellan CJatCL at 1; Kirby J at 2; Johnson J at 56

DECISION: Leave to appeal granted, but the appeal dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - standard non parole period - impairment of mental capacity through deprived upbringing and intoxication - whether offence fell within the mid range - late plea but mental health issues - suggested case exceptional - whether sufficient discount for guilty plea - utilitarian value of plea - whether sentence manifestly excessive.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
R v Cheatham [2002] NSWCCA 360
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Stewart [2008] NSWSC 1359
House v The King [1936] HCA 40; (1936) 55 CLR 499
Mulato v Regina [2006] NSWCCA 282
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
R v Borkowski [2009] NSWCCA 102
R v Israil [2002] NSWCCA 255

PARTIES: Mark Anthony Collon (App)
Regina (Resp)

FILE NUMBER(S): CCA 2007/3374

COUNSEL: G Bashir (App)
D Arnott SC (Resp/Crown)

SOLICITORS: S O'Connor - LAC (App)
S Kavanagh (Resp/Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 2007/3374

LOWER COURT JUDICIAL OFFICER: Mathews AJ

LOWER COURT DATE OF DECISION: 18/02/08

LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWSC 174

2007/3374

McCLELLAN CJ at CL
KIRBY J
JOHNSON J
Wednesday 29 July 2009

Mark Anthony COLLON v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Kirby J.

2 KIRBY J: Mark Anthony Collon (the applicant) was charged with having murdered Daryl Ogden (the deceased) at Redfern on 27 October 2006. On 18 February 2008, he pleaded guilty to that charge. He was thereafter sentenced by Mathews AJ to imprisonment for 21 years, made up of a non parole period of 14 years and 6 months (commencing 27 October 2006 and expiring 26 April 2021), and a balance of term of 6 years and 6 months (expiring on 26 October 2027). Mr Collon seeks leave to appeal against that sentence.

3 Before going to the Notice of Appeal, I should describe the circumstances in which the offence occurred. I should also say something about the applicant’s personal circumstances.

The offence.

4 Mr Collon was born in September 1985. At the time of the offence he was 21 years old. He came from a deprived background, as I will shortly describe, and at various times had been homeless.

5 In August 2005 Mr Collon was approached by an outreach worker from an organisation known as Open Family Australia. That organisation provided assistance and support to homeless people. It arranged for Mr Collon to see South Sydney Youth Services, who found him accommodation in a home unit at…

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 Collon v R

Details

AGLC: Collon v R [2009] NSWCCA 187
Case: [2009] NSWCCA 187
Decision Date: 29 July 2009

CaseChat Overview and Summary

Collon v R involved the appellant challenging his sentence for a serious criminal offence. The appellant argued that his sentence was manifestly excessive, taking into account his deprived upbringing, intoxication at the time of the offence, and a late plea due to mental health issues. The court was required to determine whether the sentence imposed was appropriate in light of these mitigating factors and whether a sufficient discount had been applied for the late guilty plea.

The central legal issues before the court were whether the standard non-parole period for the offence was appropriately applied and whether the sentence was excessive. The court had to consider the appellant's deprived upbringing and intoxication as factors that impaired his mental capacity at the time of the offence. Additionally, the court needed to assess whether the offence warranted a mid-range sentence and if the late plea and mental health issues made the case exceptional. The court also had to weigh the appropriate discount for the guilty plea and its utilitarian value against the severity of the sentence.

The court concluded that, while the appellant's deprived upbringing and intoxication did impair his mental capacity, these factors did not render the offence outside the mid-range. The court determined that a sufficient discount had been applied for the late plea, and the utilitarian value of the plea warranted a reduction in sentence. However, the court found that the sentence, while harsh, was not manifestly excessive when considering all the mitigating factors and the seriousness of the offence. The court ultimately upheld the sentence, finding it to be appropriate.

No further orders were made beyond the affirmation of the sentence.

Orders