CITATION: Regina v Ah-See [2004] NSWCCA 202 HEARING DATE(S): 4 June 2004 JUDGMENT DATE:
28 June 2004JUDGMENT OF: Bell J at 1; Howie J at 2; Hislop J at 3 DECISION: Leave to appeal granted; Appeal dismissed. CATCHWORDS: Criminal law - Sentencing - Fernando principles - Protective custody - Sentence not manifestly excessive. LEGISLATION CITED: Crimes Act 1900 - ss 60(1), 112(2), 546C
Criminal Procedure Act 1986 - Pt 3, Div 6CASES CITED: R v Burchell (1987) 34 A Crim R 148
R v Coleman (1990) 47 A Crim R 307
R v Drew [2000] NSWCCA 384
R v Durocher-Yvon [2003] NSWCCA 299
R v Fernando (1992) 76 A Crim R 58
R v Mostyn [2004] NSWCCA 97
R v Newell [2004] NSWCCA 183
R v Newman [2004] NSWCCA 102
R v Olbrich (1999) 199 CLR 270
R v Russell (1995) 84 A Crim R 386
R v Totten [2003] NSWCCA 207
Veen v R (No 2) (1988) 164 CLR 465PARTIES :
Regina
Douglas Keith Ah-SeeFILE NUMBER(S): CCA 60070/04 COUNSEL: Ms E Wilkins - Crown
Mr H Dhanji - ApplicantSOLICITORS: S Kavanagh - Director of Public Prosecutions (NSW)
SE O'Connor - Legal Aid Commission (NSW)
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/61/0037 LOWER COURT
JUDICIAL OFFICER :Woods ADCJ
60070/04
28 June 2004BELL J
HOWIE J
HISLOP J
1 BELL J: I agree with Hislop J.
2 HOWIE J: I agree with Hislop J.
3 HISLOP J: The applicant was convicted by a District Court jury of the offence of breaking and entering a dwelling house and committing a serious indictable offence (larceny), in circumstances of aggravation, namely that he knew that there was a person or persons present within the said dwelling at that time, contrary to s 112(2) of the Crimes Act 1900.
4 The maximum penalty for such offence is twenty years imprisonment. Woods ADCJ sentenced the applicant to four years imprisonment to date from 13 November 2002 with a non-parole period of three years.
5 His Honour also dealt with the applicant for two related offences, under provisions which are now found in Part 3 Division 7 of the Criminal Procedure Act 1986, namely resisting police (s 546C of the Crimes Act 1900) and assault police (s 60(1) of the Crimes Act 1900). In respect of these offences his Honour imposed concurrent sentences of six months.
6 The applicant seeks leave to appeal against sentence.
7 The facts, as found by his Honour, were:
“…in the early hours of the morning of 13 November 2002 the (applicant) did break into the residence of Ms Jacqueline Cooper at 103 Arthur Street, Wellington, and did take certain property of Ms Cooper and did place it ready to remove from the house and he did this whilst Ms Cooper and her young son were asleep in the house. What happened was that Ms Cooper awoke to find…
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- R v Ah-See [2004] NSWCCA 202
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- [2004] NSWCCA 202
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CaseChat Overview and Summary
The central legal issue before the court was whether the sentence was manifestly excessive, taking into account the principles set out in Fernando v The Queen. This involved a consideration of the nature and circumstances of the offences, the defendant's criminal history, and the appropriateness of the sentence imposed. The court also had to assess whether the defendant's placement in protective custody affected the overall severity of the sentence.
The court of appeal found that the sentence was not manifestly excessive. It examined the principles outlined in Fernando v The Queen and concluded that the sentence was proportionate to the gravity of the offences committed. The court emphasised the need to consider the totality of the circumstances, including the defendant's placement in protective custody, which was a factor that mitigated against the sentence being excessive. The court was satisfied that the sentence appropriately reflected the seriousness of the crimes and the need to protect the community.
The appeal was ultimately dismissed, and the original sentence was upheld. The court found that the sentencing judge had adequately considered the relevant principles and circumstances, and that the sentence was not manifestly excessive. The defendant's placement in protective custody was recognised as a significant factor in determining the overall severity of the sentence, and the court determined that it did not render the sentence disproportionate to the crimes committed.
Orders
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Evidence
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