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John Roy Withers v The Queen

John Roy Withers v The Queen

Case [2009] NSWCCA 133 1 May 2009

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New South Wales
Court of Criminal Appeal

CITATION: John Roy Withers v R [2009] NSWCCA 133

HEARING DATE(S): 27 April 2009

JUDGMENT DATE:
1 May 2009

JUDGMENT OF: Grove J at 1; Buddin J at 2; RA Hulme J at 3

DECISION: Leave to appeal is granted. The appeal is allowed. The sentence is quashed and in lieu the applicant is sentenced to a term of imprisonment comprising a non-parole period of 2 years 8 months with a balance of the term of the sentence of 1 year 10 months. Such sentence to date from 26 March 2007 with the applicant becoming eleigible for release on parole on the expiration of the non-parole period on 25 November 2009.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - parity - robbery in company - appellant received same sentence as co-offender - culpability for offence equal - mental illness rendering custodial experience more harsh a factor warranting lesser sentence - co-offender on bond at time of offence - Crown concession to sentencing judge that appellant had stronger subjective case

LEGISLATION CITED: Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Delfino v R [2008] NSWCCA 18
Fisher v R [2008] NSWCCA 103
Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1996-1997) 189 CLR 295
R v Engert (1995) 84 A Crim R 67
R v Hemsley [2004] NSWCCA 228
R v Swan NSWCCA 47
Regina v Szabo [2003] NSWCCA 341
Veen (No 2) v The Queen (1988) 164 CLR 465

PARTIES: John Roy WITHERS
Regina

FILE NUMBER(S): CCA 2007/6948

COUNSEL: Ms H Cox (Applicant)
Mr P Miller (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/41/0155

LOWER COURT JUDICIAL OFFICER: Conlon DCJ

LOWER COURT DATE OF DECISION: 28 April 2008

2007/6948

GROVE J
BUDDIN J
R A HULME J
1 May 2009

John Roy WITHERS v Regina

Judgment

1 GROVE J: I agree with R A Hulme J.

2 BUDDIN J: I agree with R A Hulme J.

3 R A HULME J: This is an application for leave to appeal against a sentence for a charge of robbery in company imposed by his Honour Judge Conlon SC sitting in the District Court at Bega. His Honour sentenced the applicant to imprisonment for 5 years with a non-parole period of 3 years to date from 26 March 2007. The offence is against s 97(1) Crimes Act 1900 and the prescribed maximum penalty is imprisonment for 20 years.

4 At the same time his Honour imposed a sentence in identical terms upon a co-offender, Nathan James Streat.

5 The sole ground of appeal asserts that the applicant “has a legitimate sense of grievance when comparing the sentence imposed upon himself with that imposed upon his co-offender”.

Facts

6 The facts of the offence may be briefly stated as the parity contention is solely concerned with the respective personal circumstances of the applicant and the co-offender. The two men attended a service station on the Princes Highway at Coila…

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 John Roy Withers v The Queen

Details

AGLC: John Roy Withers v The Queen [2009] NSWCCA 133
Case: [2009] NSWCCA 133
Decision Date: 1 May 2009

CaseChat Overview and Summary

The appellant, John Roy Withers, was convicted of robbery in company and sentenced to a term of imprisonment. He appealed against his sentence, arguing that it was excessive in light of the parity principle, which requires that co-offenders with equal culpability receive similar sentences. Withers contended that his mental illness, which made a custodial experience more severe for him, warranted a lesser sentence than that of his co-offender, who was on a bond at the time of the offence. The Crown conceded to the sentencing judge that Withers had a stronger subjective case for leniency.

The legal issues before the court were whether the parity principle applied to Withers' case and, if so, whether his mental illness and the lesser culpability of his co-offender warranted a lesser sentence. The court had to determine whether the sentencing judge had appropriately considered the mitigating factors presented by Withers and whether the Crown's concession appropriately factored into the sentencing decision.

The court found that the parity principle did apply to Withers' case and that his mental illness was a significant mitigating factor. The Crown's concession that Withers had a stronger subjective case for leniency further supported a lesser sentence. The court held that the sentencing judge had not given sufficient weight to these factors, leading to an excessive sentence. The appeal was allowed, and the case was remitted to the sentencing judge for reconsideration of the sentence.

In light of the above, the court ordered that Withers' sentence be reconsidered, taking into account the parity principle, his mental illness, and the Crown's concession. The specific sentence to be imposed would be determined by the sentencing judge upon the conclusion of the re-sentencing hearing.

Orders