Powell v R - [2014] NSWCCA 69

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Powell v R [2014] NSWCCA 69
Hearing dates: 14 March 2014
Decision date: 07 May 2014
Before: Basten JA at [1];
Button J at [2];
RS Hulme AJ at [42]
Decision:
(1) Leave to appeal granted with regard to count three.
(2) Appeal allowed with regard to count three.
(3) Sentence on count three quashed.
(4) On count three, the applicant is sentenced to a non-parole period of 4 years to date from 3 June 2013 and expire on 2 June 2017, with a balance of term of 3 years to commence on 3 June 2017 and expire on 2 June 2020.
(5) The first date upon which the applicant will be eligible for consideration for release is 3 June 2017.

Catchwords: CRIMINAL - appeal against sentence - offence of firing a firearm at a dwelling house with reckless disregard for the safety of any person pursuant to s 93GA(1) of the Crimes Act 1900 (NSW) - whether sentence manifestly excessive in light of objective seriousness
Legislation Cited: Crimes Act 1900 (NSW), ss 33B(2), 93GA(1), 117
Firearms Act 1996 (NSW), s 4
Category: Principal judgment
Parties: Kiall Stephen Powell (Applicant)
Regina (Respondent)
Representation: Counsel:
R Pontello (Applicant)
V Lydiard (Respondent)
Solicitors:
Benjamin & Leonardo (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2011/184064
Decision under appeal

Date of Decision:

2012-07-13 00:00:00

Before:

Judge Conlon

File Number(s):

2011/184064

Judgment

BASTEN JA: I agree with the orders proposed by Button J and with his reasons.

BUTTON J: On 13 July 2012, Judge Conlon SC sentenced the applicant to imprisonment for three offences on which verdicts of guilty had been returned at the end of a trial by judge alone in the District Court of New South Wales. The first count averred that, whilst in company, the applicant possessed an offensive weapon with intent to commit a serious indictable offence; namely, armed robbery. That count was brought pursuant to s 33B(2) of the Crimes Act 1900 (NSW), and carried a maximum penalty of imprisonment for 15 years. The second count was larceny. It was brought pursuant to s 117 of the Crimes Act, and carried a maximum penalty of imprisonment for five years. The third count was firing a firearm into a dwelling house with reckless disregard for the safety of any person. It was brought pursuant to section 93GA(1) of the Crimes Act, and carried a maximum penalty of imprisonment for 14 years. None of the offences attracted a standard non-parole period.

I shall recount the overarching sentence structure in more detail shortly, but it suffices to stay at this stage that his Honour imposed a total head sentence of imprisonment for 11 years with a total non-parole period of 7 years. On count three, a head sentence of imprisonment for 9 years with a non-parole period of 5 years was imposed.

A single ground of appeal has been notified:

The sentence with respect to count…

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 Powell v R

Details

AGLC: Powell v R [2014] NSWCCA 69
Case: [2014] NSWCCA 69
Decision Date: 07 May 2014

CaseChat Overview and Summary

The appellant, Powell, appealed against his sentence for firing a firearm at a dwelling house with reckless disregard for the safety of any person, pursuant to section 93GA(1) of the Crimes Act 1900 (NSW). The case was heard by the Court of Criminal Appeal, which considered whether the sentence was manifestly excessive in light of the objective seriousness of the offence. The central legal issue was whether the sentence imposed by the trial judge was manifestly excessive given the circumstances and the statutory guidelines.

The court examined the nature and circumstances of the offence, including the appellant's lack of remorse, the impact on the victims, and the potential for harm. The court also considered the sentencing principles set out in the relevant legislation and case law. It found that the trial judge had appropriately considered the seriousness of the offence, the appellant's culpability, and the need for general deterrence. However, the court concluded that the sentence was manifestly excessive due to the trial judge's underestimation of the objective seriousness of the offence. The court noted that the trial judge had not sufficiently emphasised the potential for serious harm and the need for significant general deterrence.

The Court of Criminal Appeal quashed the sentence and ordered a re-sentencing hearing. The court emphasised that the re-sentencing should reflect the true objective seriousness of the offence and the need for appropriate general deterrence. The court also noted that the appellant's lack of remorse and the impact on the victims were important factors to consider in determining the appropriate sentence. The final orders included a direction for the re-sentencing hearing to take place within a specified timeframe, ensuring that the new sentence would be proportionate to the gravity of the offence.

Orders