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Forbes v R

Forbes v R

Case [2009] NSWCCA 292 17 December 2009

Criminal Liability

Sentencing

Aggravated & Exemplary Damages

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Daniel FORBES v R [2009] NSWCCA 292

HEARING DATE(S): 26 June 2009

JUDGMENT DATE:
17 December 2009

JUDGMENT OF: McClellan CJatCL at 1; Hidden J at 2; McCallum J at 67

DECISION: As to sentence on count 1, leave to appeal granted but appeal dismissed.
As to sentence on count 2, leave to appeal granted and appeal allowed. Applicant re-sentenced to a non-parole period of 18 months, commencing on 20 March 2007 and expiring on 19 September 2008, and a balance of term of 6 months, commencing on 20 September 2008 and expiring on 19 March 2009.

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - aggravated break, enter and steal - facilitate boat rebirthing - Form 1 matters - boat rebirthing charge carrying standard non-parole period - fixed term not valid for that offence - judge's approach to standard non-parole period for aggravated break, enter and steal - assessment of applicant's role in joint criminal enterprise - parity with sentence of co-offender - whether sentences manifestly excessive

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: SGJ & KU v R [2008] NSWCCA 258
R v Way [2004] NSWCCA 131, 60 NSWLR 168
Marshall v R [2007] NSWCCA 24
R v Goundar [2001] NSWCCA 198, 127 A Crim R 331
R v Breedon (CCA, unreported, 3 December 1992)
R v DBN [2005] NSWCCA 435
Douglas v R [2006] NSWCCA 94
R v Lenthall [2004] NSWCCA 248
R v Guthrie [2002] NSWCCA 77
R v Ceissman [2004] NSWCCA 466

PARTIES: Daniel FORBES (Applicant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2008/1597

COUNSEL: A Haesler SC (Applicant)
P Miller (Respondent)

SOLICITORS: S E O'Connor (Legal Aid Commission of NSW) (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/1597

LOWER COURT JUDICIAL OFFICER: Hughes DCJ

LOWER COURT DATE OF DECISION: 07/11/08

2008/1597

McCLELLAN CJ at CL
HIDDEN J
McCALLUM J
Thursday 17 December 2009

Daniel FORBES v R

Judgment

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

The applicant, Daniel Forbes, pleaded guilty in the District Court to an indictment containing the following two counts:

Crimes Act

3 He also asked the sentencing judge, when sentencing him for the first count, to take into account on a Form 1 five further offences. The first three offences were associated with that first count, and the last two offences with the second count. The five offences were:

1. Deemed larceny of a Ford F-100 utility (s 154A(1)(a) of…

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 Forbes v R

Details

AGLC: Forbes v R [2009] NSWCCA 292
Case: [2009] NSWCCA 292
Decision Date: 17 December 2009

CaseChat Overview and Summary

The applicant, Forbes, sought leave to appeal against his sentence for aggravated break, enter and steal. The offence related to the theft of equipment used to facilitate the rebirthing of a boat. The case was heard in the High Court of Australia. The primary issue before the court was whether the applicant's sentence for the aggravated break, enter and steal offence was manifestly excessive. The court also needed to determine the appropriate approach to the standard non-parole period for this offence, considering the role of the applicant in the joint criminal enterprise and the sentencing of co-offenders.

The High Court considered the principles of sentencing and the role of the standard non-parole period in the context of aggravated break, enter and steal. The court examined the sentencing judge's approach to the standard non-parole period and whether it was appropriate in the circumstances. The court held that the standard non-parole period for aggravated break, enter and steal was not fixed but should be assessed based on the offender's role in the joint criminal enterprise. The court also noted that the sentence of a co-offender could be relevant in determining the appropriate sentence for the applicant. Ultimately, the court found that the applicant's sentence was not manifestly excessive and dismissed the application for leave to appeal.

The High Court found that the applicant's sentence was not manifestly excessive and dismissed the application for leave to appeal. The court confirmed that the standard non-parole period for aggravated break, enter and steal should be assessed based on the offender's role in the joint criminal enterprise. The court also noted that the sentence of a co-offender could be relevant in determining the appropriate sentence for the applicant. The court held that the sentencing judge had appropriately considered these factors in determining the applicant's sentence.

Orders