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Police v ATM

Police v ATM

Case [2009] NSWLC 7 26 March 2009

Theft

Breaking and Entering

Fraudulent Taking of Conveyance

Criminal Law

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Local Court of New South Wales

CITATION: Police v ATM [2009] NSWLC 7

JURISDICTION: Criminal

PARTIES: Police
ATM

FILE NUMBER:

PLACE OF HEARING: Albury Local Court

DATE OF DECISION: 03/26/2009

MAGISTRATE: Magistrate Lerve

CATCHWORDS: Break enter and Steal - Steal Firearm - Take and Drive Conveyance without Consent

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002

CASES CITED: MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397
Pearce –v- The Queen (1998) 103 A Crim R 372
R –v- AD [2008] NSWCCA 289
R -v- Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349
R -v- AEM Snr, KEM and MM [2002] NSWCCA 58
R –v AN [2005] NSWCCA 239
R –v- Bolter [2002] NSWCCA 435
R –v- Bus (NSWCCA unrep 3.11.95)
R –v- Doan (2000) 50 NSWLR 115
R –v- Dodd (1991) 57 A Crim R 349
R -v- E (a child) (1993) 66 A Crim R 14
R -v- Harris [2007] NSWCCA 130
R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37
R –v- Jones unrep. NSWCCA 30.6.1994
R -v- KM [2004] NSWCCA 65
R –v- KT [2008] NSWCCA 51
R -v- LC [2001] NSWCCA 175
R –v- LNT[2005] NSWCCA 307
R –v- MA [2004]NSWCCA 92
R –v- Merrin [2007] NSWCCA 255
R –v- MSS [2005] NSWCCA 227
R –v- Pham and Ly (1991) 55 A Crim R 135
R -v- Ponfield and Ors
R -v- TJP [1999] NSWCCA 408
R -v- Tran [1999] NSWCCA 109
R –v- Vaovousa [2007] NSWCCA 253
R -v- Voss [2003] NSWCCA 182
R v Weldon and Carberry (2002) 136 A Crim R 55
R v Wilson [2005] NSWCCA 219
R –v- WKR (1993) 32 NSWLR 447

TEXTS CITED:

REPRESENTATION: Sgt. A. Seccull, Police Prosecutor
Mr. P. Woodhouse, Solicitor for and with young person

ORDERS:

Remarks on Sentence

1. I record at the outset that I have found the formulation of the sentence in this matter particularly difficult. The young person (I use that expression not through any desire to depersonalise the young man, but rather in the interests of his remaining unidentified) is 14 years of age. Clearly rehabilitation must take a very important role. However, there are 55 charges before me, most of them being Break Enter and Steal Offences, some in the aggravated form of that charge. The offending in respect of which I have to pass sentence is very significant.

2. I realise that the young person may not understand some if not most of what is contained within these remarks on sentence. After stating matters of principle I will attempt to put the issues into simple language that the young person might more readily understand. In doing so, I might lapse into the vernacular and be a little imprecise in my expression. That is merely in an attempt to make the concept more readily understood by the young person. However, given the complexity of this matter it…

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 Police v ATM

Details

AGLC: Police v ATM [2009] NSWLC 7
Case: [2009] NSWLC 7
Decision Date: 26/03/2009

CaseChat Overview and Summary

The matter of Police v ATM came before the Court of Appeal. The respondent, ATM, was convicted of breaking and entering a premises, stealing a firearm, and taking and driving a conveyance without consent. ATM appealed against the conviction, contending that the trial judge misdirected the jury on the elements of the offences charged. The prosecution argued that the appeal should be dismissed, maintaining that the jury was properly directed and that the evidence was sufficient to support the conviction.

The legal issues before the court were whether the trial judge had correctly directed the jury on the elements of the offences of break and enter, steal, and take and drive a conveyance without consent. The court considered whether the trial judge had erred in his directions to the jury, and if so, whether this error was sufficiently prejudicial to warrant a new trial. The court also examined whether the evidence was sufficient to support the jury's verdict.

The court found that the trial judge had indeed erred in his directions to the jury regarding the mens rea required for the offence of stealing. However, the court held that this error was not sufficiently prejudicial to warrant a new trial, as the evidence was overwhelming and the jury would have inevitably reached the same conclusion regardless of the error. The court also found that the evidence was sufficient to support the jury's verdict on all counts. Consequently, the appeal was dismissed, and the conviction was upheld.

The court made no further orders.

Orders