Penfold v The Queen; Ward v The Queen - [2010] NSWCCA 61

New South Wales
Court of Criminal Appeal

CITATION: PENFOLD v R; WARD v R [2010] NSWCCA 61

HEARING DATE(S): 9 February 2010

JUDGMENT DATE:
13 April 2010

JUDGMENT OF: Grove J at 1; Simpson J at 104; RA Hulme J at 105

DECISION: In each appeal, leave to appeal against sentence granted and appeal dismissed.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Robbery whilst armed - Two victims - Extremely serious injury to one victim - Co-offenders - Different roles - No error by sentencing judge in application of principles - Assessments within range of discretion - Grounds raising no particular point of principle

CATEGORY: Principal judgment

CASES CITED: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
Fahs v R [2007] NSWCCA 26
GAS & SJK v The Queen (2004) 217 CLR 198
Ibbs v The Queen (1987) 163 CLR 447
R v Cahyadi [2007] NSWCCA 1; (2007) 168 A Crim R 41
R v Frazer & Spencer [2007] NSWSC 1449
R v Henry (1999) 46 NSWLR 346
R v Mostyn (2004) 145 A Crim R 304
R v Mungomery (2004) 151 A Crim R 376
R v Sotheren [2001] NSWCCA 425
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Way (2004) 60 NSWLR 168
R v Wright [2009] NSWCCA 3
Tatana v R [2006] NSWCCA 398
The Queen v Veen (No 2) (1988) 164 CLR 485
Vaovasa v The Queen (2007) 174 A Crim R 116

PARTIES: Kenneth John PENFOLD - Applicant
Brendan WARD - Applicant
REGINA - Crown/Respondent

FILE NUMBER(S): CCA 2007/12644; 2007/8834

COUNSEL: In person (Penfold) - Applicant
T Ozen (Ward - Applicant
F Veltro - Respondent/Crown

SOLICITORS: Nyman Gibson Stewart - Applicant Ward
S Kavanagh - Solicitor for Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/31/0310 (Penfold); 2007/31/0311 (Ward)

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

LOWER COURT DATE OF DECISION: 22 August 2008

CCA 2007/12644
CCA 2007/8834

GROVE J
SIMPSON J
RA HULME J
13 April 2010

Kenneth John PENFOLD v R

Brendan WARD v R

Judgment

1 GROVE J: Before the court are applications for leave to appeal against severity of sentence imposed by Hosking DCJ (the Judge) at Sydney District Court following a hearing which had commenced in Newcastle. The principal offences by each applicant were committed in the course of a joint criminal enterprise and it is convenient to commence by recapitulating the facts which had been placed before the sentencing court in an agreed statement. This statement is lengthy but, having regard to some matters being sought to be raised by the applicant Penfold in particular, it should be recited in full. It is noted that the applicant Ward, who is represented by Mr Ozen of counsel on the appeal, did not challenge any factual finding by the judge. The applicant Penfold appeared in person on the appeal. It is further noted that Penfold himself signed the statement of facts before…

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

Case: [2010] NSWCCA 61
Decision Date: 13 April 2010

CaseChat Overview and Summary

In this matter, two appeals were heard by the High Court of Australia. The first appeal was brought by the applicant, Penfold, who challenged the sentence imposed for his role in a robbery where he was armed. The second appeal was by Ward, who was a co-offender in the same crime but had a different role. The case involved a dispute over the severity and appropriateness of the sentences handed down by the lower courts. The High Court was tasked with reviewing whether the sentencing judge made any errors in the application of sentencing principles.

The primary legal issues revolved around the appropriateness of the sentences given to Penfold and Ward. The Court had to consider whether the sentencing judge correctly assessed the severity of the crime, the roles of the applicants, and the injuries caused to the victims. It was essential to determine if the sentences were within the range of judicial discretion and whether the judge's application of the principles was in error. The appeals focused on whether the sentences imposed were excessive, taking into account the circumstances of the crime and the roles of the applicants.

The Court found that the sentencing judge did not make any errors in applying the sentencing principles. It was held that the assessments made by the judge were within the range of judicial discretion. The Court emphasised that the sentencing judge had considered the gravity of the offence, the roles of the applicants, and the impact on the victims. The severity of the injuries sustained by one of the victims was also a factor in the judge's assessment. The Court concluded that the grounds of appeal raised no particular point of principle that would warrant interference with the sentences imposed.

As a result of the Court's decision, the appeals were dismissed. The sentences handed down by the lower courts were upheld, and the applicants' appeals were not successful in establishing any error in the sentencing process.

Orders