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Owens v R

Owens v R

Case [2017] NSWCCA 16 24 February 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Owens v R [2017] NSWCCA 16
Hearing dates: 31 January 2017
Date of orders: 24 February 2017
Decision date: 24 February 2017
Before: Bathurst CJ at [1]
Johnson J at [2]
Fagan J at [89]
Decision:
Leave to appeal granted. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - robbery in company contrary to s.97(1) Crimes Act 1900 - suggested error in use of R v Henry guideline - suggested error in double counting fact that offence committed in company - claim that sentence manifestly excessive - no error demonstrated - appeal dismissed
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Criminal Procedure Act 1986
Cases Cited: Legge v R [2007] NSWCCA 244
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 19
Markarian v The Queen [2005] 228 CLR 357; [2005] HCA 25
Porter v R [2008] NSWCCA 145
R v AB (2011) 59 MVR 356; [2011] NSWCCA 229
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v Lesi [2005] NSWCCA 63
R v Murchie (1999) 108 A Crim 482; [1999] NSWCCA 424
R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130
R v Stanley [2003] NSWCCA 233
R v Tran [1999] NSWCCA 109
Rudolf v R [2016] NSWCCA 313
Texts Cited: ---
Category: Principal judgment
Parties: Shayden Owens (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr M Adamo with Mr G Beveridge (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Nyman Gibson Miralis (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/98987
Publication restriction: ---
Decision under appeal

Court or tribunal:

Sydney District Court

Date of Decision:

29 February 2016

Before:

Garling ADCJ

File Number(s):

2014/98987

Judgment

BATHURST CJ: I agree with the orders proposed by Johnson J and with his Honour’s reasons.
JOHNSON J: The Applicant, Shayden Owens, seeks leave to appeal against sentence imposed in the Sydney District Court on 29 February 2016 for an offence of robbery in company contrary to s.97(1) Crimes Act 1900.
The maximum penalty for an offence under s.97(1) is imprisonment for 20 years. There is no standard non-parole period.
Following a plea of guilty, the Applicant was sentenced to imprisonment for two years and six months commencing on 29 February 2016, comprising a non-parole period of 18 months and a balance of term of one year.

Facts of Offence

What follows is drawn from the Statement of Agreed Facts which was signed by the Applicant on 7 October 2015 and was tendered at the sentencing hearing before Garling ADCJ. Some additional matters are included and are not controversial.
On the morning of 5 July 2013 (the Applicant’s 19th birthday), he appeared before the Mount Druitt Local Court upon a charge of driving with the low-range prescribed concentration of alcohol. Following a plea of guilty, the Applicant was fined $300.00 and was disqualified…

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 Owens v R

Details

AGLC: Owens v The Queen [2017] NSWCCA 16
Case: [2017] NSWCCA 16
Decision Date: 24 February 2017

CaseChat Overview and Summary

In the High Court, the appellant Owens appealed against his sentence for robbery in company. The crime was committed on 18 October 2017 and the appellant was sentenced to imprisonment by the District Court of New South Wales on 19 March 2018. Owens challenged the sentence on the grounds that it was manifestly excessive and that the court had erred in its application of the guidelines and principles for sentencing, specifically in relation to the consideration of the fact that the offence was committed in company.

The primary issues before the court were whether there had been an error in the application of the guideline in R v Henry and whether the sentencing court had erred in considering the fact that the offence was committed in company. The appellant argued that the sentencing court had effectively counted this fact twice in its assessment of his culpability, once as an aggravating factor and once as part of the calculation of the non-parole period. The appellant further argued that the sentence was manifestly excessive and did not accord with the principle of proportionality.

The court found that there was no error in the application of R v Henry or in the consideration of the fact that the offence was committed in company. The court held that the sentencing judge had appropriately balanced the various factors relevant to the appellant's culpability and had not erred in law. The court also held that the sentence was not manifestly excessive, and that the sentencing judge had properly exercised his discretion in determining the appropriate term of imprisonment. The appeal was dismissed.

Orders