Driver v The Queen

The appellant was convicted of multiple charges, including theft, armed robbery at a bank, the intention to commit armed robbery, and firearm offences. The appellant appealed against the sentence imposed, arguing that the total effective sentence of eight years and six months’ imprisonment, with a non-parole period of six years, was manifestly excessive. The appeal centred on whether the trial judge was required to consider the statutory re-characterisation of the offence of possession of an unregistered handgun and the reduction in penalty that occurred after the offence was committed.

The court considered whether the trial judge erred by not taking into account the re-characterisation of the offence and the subsequent reduction in penalty. The court referred to several precedents, including R v Ronen, R v Bowen, and R v Grenfell, which emphasised the importance of considering the penalty at the time of sentencing. The court concluded that the trial judge erred by not considering the reduced penalty, and this constituted a significant and substantial error affecting the fairness of the sentence.

The appeal was allowed, and the matter was remitted to the trial judge for resentencing. The court emphasised that the trial judge should consider the penalty for the offence of possession of an unregistered handgun as it stood at the time of sentencing, which was a lower penalty than that applied by the trial judge. The court did not set aside the convictions but remitted the matter to the County Court for the appellant to be re-sentenced.

The court did not specify the final orders but directed that the appellant be re-sentenced by the County Court, taking into account the reduced penalty for the offence of possession of an unregistered handgun. The convictions were upheld, and the matter was remitted for resentencing.