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Ingrey v R

Ingrey v R

Case [2016] NSWCCA 31 7 March 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ingrey v R [2016] NSWCCA 31
Hearing dates: 17 February 2016
Date of orders: 07 March 2016
Decision date: 07 March 2016
Before: Hoeben CJ at CL at [1]
Adams J at [51]
Fullerton J at [52]
Decision:
(1) Leave to appeal is granted and the appeal is allowed.
(2) The sentence imposed by King SC DCJ on 16 February 2015 is quashed.
(3) In lieu thereof, the applicant is sentenced to a term of imprisonment of 9 years, commencing 13 December 2015, with a non-parole period of 5 years expiring 12 December 2020. The balance of term is 4 years which will expire on 12 December 2024.

Catchwords: CRIMINAL LAW – sentence appeal – applicant found guilty after trial of one count of attempted robbery armed with a dangerous weapon – whether sentencing judge took into account social disadvantage of applicant – social disadvantage not adequately treated – need to re-sentence – family background taken into account – interplay of conflicting sentencing considerations – age of applicant – applicant already serving sentences for other offences – sentence reduced.
Legislation Cited: Crimes Act 1900 - ss 97(2) and 344A(1)
Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Callaghan v R [2006] NSWCCA 58
House v R [1936] HCA 40; 55 CLR 499
Jinnette v R [2012] NSWCCA 217
Kentwell v The Queen [2014] HCA 37; 88 ALJR 947
Munda v Western Australia [2013] HCA 38; 249 CLR 600
R v Fernando [1992] 76 A Crim R 58
R v Henry [1999] NSWCCA 111; 106 A Crim R 149
Category: Principal judgment
Parties: Clifford Ingrey – Applicant
Regina – Respondent Crown
Representation:
Counsel:
Mr P Segal – Applicant
Ms S Dowling SC – Respondent Crown
Solicitors:
Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2013/245540
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

16 February 2015

Before:

King SC DCJ

File Number(s):

2013/245540

Judgment

HOEBEN CJ at CL:

Offence and sentence

On 23 October 2014, after a two day trial before King SC DCJ sitting without a jury, the applicant was found guilty of one count of attempted robbery armed with a dangerous weapon (shotgun) pursuant to ss 97(2) and 344A(1) Crimes Act 1900. Section 97(2) carries a maximum penalty of 25 years imprisonment. There is no standard non-parole period.

On 16 February 2015 his Honour imposed a sentence of 10 years imprisonment to commence 13 December 2016 and expire 12 December 2026 with a 6 year non-parole period to expire 12 December 2022. His Honour found special circumstances to vary the “statutory ratio” of the overall sentence to 60 per cent.
The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed upon him on the following ground:

The learned sentencing judge did not take into account…

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 Ingrey v R

Details

AGLC: Ingrey v R [2016] NSWCCA 31
Case: [2016] NSWCCA 31
Decision Date: 07 March 2016

CaseChat Overview and Summary

The appellant, Ingrey, appealed against his sentence for attempted robbery armed with a dangerous weapon. The matter was heard in the High Court of Australia. The primary issue before the court was whether the sentencing judge had appropriately considered the appellant's social disadvantage in determining his sentence. The appellant argued that the sentencing judge did not adequately account for his disadvantaged background, which was a critical factor in his offending behaviour. This was a pivotal point, as it influenced the court's consideration of the appropriate balance between punitive and rehabilitative elements in sentencing.

The court examined the sentencing judge's approach to the interplay of various sentencing considerations, including the appellant's social disadvantage, his family background, and his age at the time of the offence. The court found that while the sentencing judge did recognise the appellant's disadvantaged background, this factor was not sufficiently integrated into the sentencing decision. The court emphasised the importance of addressing social disadvantage in sentencing to prevent recidivism and promote rehabilitation. Furthermore, the court noted the appellant's age, which was a mitigating factor, and the fact that he was already serving sentences for other offences. These considerations, alongside the inappropriateness of the original sentence, led the court to conclude that a re-sentencing was necessary.

In light of the aforementioned factors, the court reduced the appellant's sentence, reflecting the need to adequately address his social disadvantage and other mitigating circumstances. The court's decision underscores the importance of a holistic approach to sentencing, particularly in cases involving defendants with significant social disadvantages. The final orders of the court mandated a re-sentencing hearing, where the sentencing judge would take into account the court's observations and recommendations.

Orders