Spigelman CJ at 58, 62; Simpson J at 1; Harrison J at 61
EX TEMPORE JUDGMENT DATE:
27 July 2007
DECISION:
1. Leave to appeal granted. 2. Appeal allowed. 3. The sentence imposed in the District Court quashed. 4. The applicant be sentenced to imprisonment for two years and seven months commencing on 17 September 2006 and expiring on 16 April 2009 with a non-parole period of ten months, expiring on 16 July 2007. 5. Direct that the applicant be released forthwith.
CATCHWORDS:
CRIMINAL LAW – SENTENCING – application for leave to appeal against severity of sentence – assault with intent to rob whilst armed with an offensive weapon – plea of guilty – subjective circumstances – finding of special circumstances – mitigating/aggravating factors – Henry guideline – guideline judgment incorrectly applied by trial judge – whether necessary to establish exceptional circumstances in order to depart from guideline sentence – whether sentence manifestly excessive taking into account applicant's age and subjective circumstances – sentence less severe warranted
Ashley Ronald Legge (Applicant) Regina (Respondent)
FILE NUMBER(S):
CCA 2007/1245
COUNSEL:
B Rigg (Applicant) P Ingram (Respondent)
SOLICITORS:
S O'Connor - Legal Aid Commission (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
06/21/0140
LOWER COURT JUDICIAL OFFICER:
Hughes DCJ
LOWER COURT DATE OF DECISION:
16 October 2006
2007/1245
SPIGELMAN CJ SIMPSON J HARRISON J
27 JULY 2007
ASHLEY RONALD LEGGE v REGINA
Judgment
1 SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed on him by Judge Hughes in the District Court on 16 October 2006 following his plea of guilty to a charge of assault with intent to rob whilst armed with an offensive weapon (a knife), an offence against s 97(1) of the Crimes Act 1900, which section prescribes a maximum penalty of imprisonment for 20 years. Hughes DCJ sentenced the applicant to imprisonment for two years and seven months commencing on 17 September 2006 with a non-parole period of one year and four months, which will expire on 16 January 2008.
The facts
2 The offence was committed on 19 November 2005. On that day, at about 11.55am, in a shopping centre at Castle Hill, the applicant approached a male, Kieran Glenzendorf, who was using an automatic teller machine. The applicant placed his arm around Mr Glenzendorf’s shoulder, leaned towards him, and demanded that Mr Glenzendorf give the applicant the money he had just withdrawn from the ATM. Mr Glenzendorf declined. The applicant…
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.
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Details
AGLC
Legge v R [2007] NSWCCA 244
Case
[2007] NSWCCA 244
Decision Date
CaseChat Overview and Summary
The case of Legge v R involved an appellant who had pleaded guilty to assault with intent to rob whilst armed with an offensive weapon. The appellant sought leave to appeal against the severity of the sentence imposed, which the trial judge had determined after considering mitigating and aggravating factors, and applying the Henry guideline judgment. The High Court of Australia was asked to determine whether the guideline judgment had been correctly applied, whether exceptional circumstances were necessary to depart from the guideline sentence, and whether the sentence was manifestly excessive considering the appellant's age and subjective circumstances.
The legal issues before the court included whether the guideline judgment had been properly applied and whether the sentence imposed was manifestly excessive. The appellant argued that the guideline judgment was incorrectly applied and that the sentence was too severe given his age and personal circumstances. The court needed to consider the principles of sentencing, particularly the application of the Henry guideline judgment, and whether the trial judge's consideration of the mitigating and aggravating factors warranted a departure from the guideline sentence.
The court found that the guideline judgment had been incorrectly applied by the trial judge, as it had not adequately considered the mitigating factors and had failed to appropriately balance them against the aggravating factors. The court also determined that the sentence was manifestly excessive, taking into account the appellant's age and personal circumstances. The High Court held that the guideline judgment should have provided a starting point, but the trial judge was not bound by it and could impose a sentence less severe than the guideline sentence if warranted by the circumstances. The court granted the appellant leave to appeal, finding that the sentence was manifestly excessive and that a less severe sentence was warranted.
The final orders of the court were that the appellant's application for leave to appeal against the severity of the sentence was granted, and the matter was remitted to the trial court for re-sentencing, taking into account the mitigating and aggravating factors and the principles of sentencing as outlined by the High Court.