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Jones v The Queen

Jones v The Queen

Case [2015] NSWCCA 180 7 July 2015

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Jones v R [2015] NSWCCA 180
Hearing dates: 27 May 2015
Decision date: 07 July 2015
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Beech-Jones J at [59]
Decision:
Leave to appeal granted. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentencing - Applicant pleaded guilty to one count of attempted aggravated break and enter with intent to commit serious indictable offence (ss.113(2) and 344A Crimes Act 1900) - two further offences taken into account on a Form 1 - whether sentencing Judge erred in declining to find special circumstances - issues raised on appeal not raised at first instance - no error disclosed - appeal dismissed
Legislation Cited: Crimes Act 1900
Cases Cited: Allen v R [2015] NSWCCA 113
Beale v R [2015] NSWCCA 120
Caristo v R [2011] NSWCCA 7
Dyer v R [2011] NSWCCA 185
Jackson v R [2010] NSWCCA 162
Jiang v R [2010] NSWCCA 277
Jinnette v R [2012] NSWCCA 217
R v Fidow [2004] NSWCCA 172
R v King [2003] NSWCCA 352
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460
Texts Cited: ---
Category: Principal judgment
Parties: Kevin Glen Jones (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr IH Nash (Applicant)
Mr PG Ingram SC (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/399090
Publication restriction: ---
Decision under appeal

Court or tribunal:

Taree District Court

Jurisdiction:

---

Citation:

---

Date of Decision:

28 February 2014

Before:

McLoughlin DCJ

File Number(s):

2011/399090

Judgment

HOEBEN CJ at CL: I agree with Johnson J.
JOHNSON J: The Applicant, Kevin Glen Jones, seeks leave to appeal against the sentence imposed on him by McLoughlin DCJ at Taree District Court on 28 February 2014.
The Applicant had pleaded guilty to one count of attempted aggravated break and enter with intent to commit a serious indictable offence contrary to ss.113(2) and 344A Crimes Act 1900. This offence is punishable by imprisonment for 14 years with no standard non-parole period.
The Applicant asked the sentencing Judge to take two further offences into account on a Form 1, both punishable by imprisonment for five years with no standard non-parole period:

being carried in a conveyance knowing that it had been taken without consent, contrary to s.154A(1)(b) Crimes Act 1900; and

intentionally damaging property, contrary to s.195(1)(a) Crimes Act 1900.

Taking into account the Form 1 offences, the Applicant was sentenced to imprisonment comprising a non-parole period of three years and four months commencing on 29 August 2013 and expiring on 28 December 2016, with a balance of term of one year and two months expiring on 28 February 2018.

Factual Background

There was no dispute between the parties in the District Court, nor in this Court, as to the facts of the offending.
At about 12.30 am on 6 June 2010, CCTV footage recorded…

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 Jones v The Queen

Details

AGLC: Jones v The Queen [2015] NSWCCA 180
Case: [2015] NSWCCA 180
Decision Date: 07 July 2015

CaseChat Overview and Summary

The matter of Jones v The Queen involved an appeal by the applicant against his sentencing for a criminal offence. The applicant had pleaded guilty to one count of attempted aggravated break and enter with intent to commit a serious indictable offence, contrary to sections 113(2) and 344A of the Crimes Act 1900. The applicant had two further offences taken into account on a Form 1. The central issue in the appeal was whether the sentencing judge erred in declining to find special circumstances mitigating the sentence. The appeal raised issues that were not brought before the sentencing judge.

The court considered the arguments presented on appeal, focusing on whether the sentencing judge erred in not finding special circumstances. The court examined the circumstances of the offence and the applicant's background, as well as the principle that issues not raised at first instance should not be considered on appeal. The court concluded that no error was disclosed in the sentencing decision. The appeal did not present any new or different arguments that had not been considered by the original sentencing judge, and therefore the appeal was dismissed. The court found that the sentencing judge had appropriately exercised their discretion in considering the relevant factors and had not erred in declining to find special circumstances.

The court's decision was that the appeal was without merit, and the original sentence imposed by the sentencing judge was affirmed. The appeal was dismissed, and the applicant's sentence remained as determined by the sentencing judge. The court's reasoning was based on the principle that issues not raised at first instance should not be considered on appeal, and that the sentencing judge had exercised their discretion appropriately in declining to find special circumstances.

Orders