Jones v The Queen

Case [2015] NSWCCA 180


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

  1. HOEBEN CJ at CL: I agree with Johnson J.

  2. 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.

  3. 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.

  4. 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:

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

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

  1. 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

  1. There was no dispute between the parties in the District Court, nor in this Court, as to the facts of the offending.

  2. At about 12.30 am on 6 June 2010, CCTV footage recorded…

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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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