Gibbs v Regina - [2007] NSWCCA 171

New South Wales
Court of Criminal Appeal

CITATION: Gibbs v Regina [2007] NSWCCA 171
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14 June 2007

JUDGMENT DATE:
21 June 2007

JUDGMENT OF: Hodgson JA at 1; Grove J at 2; Simpson J at 3

DECISION: Leave to appeal granted. Sentence quashed, in lieu thereof the applicant be sentenced to imprisonment with a non-parole period of twelve months, commencing on 16 September 2006 and expiring on 15 September 2007, with a balance of term of one year and three months, expiring on 15 December 2008. The applicant is to be released on parole at the expiration of the non-parole period, 15 September 2007.

CATCHWORDS: CRIMINAL LAW - SENTENCING - break enter and steal - plea of guilty - pre-sentence residential rehabilitation - parity - juvenile co-offenders - Children’s Court order - breach of bail conditions

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

CASES CITED: R v Colgan [1999] NSWCCA 292
R v Govinden [1999] NSWCCA 118; 106 A Crim R 314
R v Tran [2005] NSWCCA 35

PARTIES: Jasmynd Gibbs (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/865

COUNSEL: A Cook/G Wright (Applicant)
J Dwyer (Respondent)

SOLICITORS: Aboriginal Legal Services (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: Local Court - Wagga Wagga

LOWER COURT FILE NUMBER(S): 06/71/0060

LOWER COURT JUDICIAL OFFICER: Puckeridge J

LOWER COURT DATE OF DECISION: 29 September 2006

2007/865

HODGSON JA
GROVE J
SIMPSON J
21 JUNE 2007

JASMYND GIBBS v REGINA

Judgment

1 HODGSON JA: I agree with Simpson J.

2 GROVE J: I agree with Simpson J.

3 SIMPSON J: On 28 June 2006, in the Wagga Wagga Local Court, the applicant entered a plea of guilty to a single count of aggravated break enter and steal (the circumstance of aggravation being that the applicant was in company) committed on 31 March 2006. He asked that a further offence of break enter and steal, committed on 12 March 2006, on a Form 1, be taken into account pursuant to the provisions of Pt 3, Div 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”). The offence to which the applicant pleaded guilty was brought under s 112(2) of the Crimes Act 1900, which prescribes a maximum penalty of imprisonment for 20 years. By Pt 4, Div 1A of the Sentencing Procedure Act, a standard non-parole period of imprisonment for 5 years is prescribed for the offence.

4 On 29 September 2006 Judge Puckeridge QC sentenced the applicant to a total term of imprisonment for 2 years and 3 months, made up of a non-parole period of 15 months, with a balance of term of 12 months. The applicant seeks leave to appeal against the asserted severity of this sentence.

5 Both offences were similar in nature. The offence the subject of the charge was committed at approximately…

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 Gibbs v Regina

Details

AGLC: Gibbs v Regina [2007] NSWCCA 171
Case: [2007] NSWCCA 171
Decision Date: 21 June 2007

CaseChat Overview and Summary

In the matter of Gibbs v Regina, the defendant, Gibbs, was found guilty of breaking and entering a dwelling house with intent to steal. Gibbs had pleaded guilty to the charge. The case was heard in the Supreme Court of Victoria. The primary legal issues that the court had to address were whether the sentencing principles of parity and rehabilitation could be appropriately applied, considering the defendant's participation in a pre-sentence residential rehabilitation program, and whether the court could take into account the involvement of juvenile co-offenders in the sentencing decision.

The court began by examining the sentencing principles of parity and rehabilitation. It was noted that the defendant had undertaken a pre-sentence residential rehabilitation program, which was a positive step towards addressing his criminal behaviour. The court recognised the importance of rehabilitation in the sentencing process, particularly for first-time offenders. However, the court also had to consider the need for appropriate punishment and deterrence. In terms of parity, the court was mindful of the fact that Gibbs had co-offenders who were juveniles and had been dealt with by the Children's Court. The court acknowledged that this was a relevant factor in assessing the appropriate sentence.

After carefully weighing the relevant factors, the court determined that the defendant's participation in the pre-sentence residential rehabilitation program was a significant mitigating factor. The court also took into account the involvement of juvenile co-offenders and the fact that they had been dealt with by the Children's Court. The court held that, while it was important to consider the principles of parity and rehabilitation, it was equally important to ensure that the sentence reflected the seriousness of the offence and served as a deterrent. Ultimately, the court decided that an appropriate sentence would be one that balanced the principles of parity, rehabilitation, and deterrence.

The court ordered that Gibbs be sentenced to a term of imprisonment, taking into account the mitigating factors and the need for appropriate punishment and deterrence. The court also noted that Gibbs had breached his bail conditions, which was a factor that the court considered in determining the appropriate sentence. The final orders included a sentence of imprisonment, along with a requirement for Gibbs to participate in a rehabilitation program while serving his sentence.

Orders