R v Aiken - [2001] NSWCCA 40

CITATION: R v Aiken [2001] NSWCCA 40 revised - 30/03/2001

FILE NUMBER(S): CCA 60036/00

HEARING DATE(S): 14/02/01

JUDGMENT DATE:
14 February 2001

PARTIES :

Regina v Matthew Aiken

JUDGMENT OF: James J at 1; Whealy J at 31

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/21/2072

LOWER COURT JUDICIAL
OFFICER : O'Reilly DCJ

COUNSEL : In person - Appellant
MC Marien - Crown

SOLICITORS: - Appellant
SE O'Connor - Crown

DECISION: Leave to appeal granted - appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

No 60036/00

JAMES J

WHEALY J

Wednesday 14 February 2001

REGINA v MATTHEW CLIFFORD AIKEN

JUDGMENT

1 JAMES J: Matthew Aiken has applied for leave to appeal against sentences imposed on him in the District Court on 3 December 1999 by Judge O'Reilly, after he had pleaded guilty to three charges, namely:

(1) Robbery in company, an offence under s97(1) of the Crimes Act, which carried a maximum penalty of a term of penal servitude for twenty years

(2) Being carried in a conveyance without the consent of the owner, an offence under s154A(1)(b) of the Crimes Act, for which the maximum penalty was imprisonment for five years

(3) assault with intent to rob whilst armed, an offence under s97(1) of the Crimes Act, for which there was the same maximum penalty as that for the first charge.

2 Judge O’Reilly sentenced the applicant on the first charge to a sentence of penal servitude for four years with a minimum term of two years commencing on 3 December 1999, on the second charge to a sentence of a fixed term of imprisonment for six months commencing on 3 December 1999 and on the third charge to a sentence of a fixed term of penal servitude for two years commencing on 3 December 1999.

3 The offences the subject of the first and second charges were committed on 7 February 1999. The prisoner and two co-offenders named Saville and Nguyen entered a service station which they had decided to rob. Saville was carrying a wheel brace and Nguyen a carving knife. Obviously as part of the plan to carry out the robbery, the applicant bought a bottle of drink from the service station attendant. When the service station attendant opened the cash register, Nguyen jumped the counter, produced the knife and yelled to the attendant to get down on the floor. Saville raised the wheel brace threateningly. The applicant and Saville took cash from the cash register and Nguyen took cigarettes. All three ran off and escaped in the vehicle which had previously been stolen. The proceeds of the robbery were used to buy heroin.

4 The offence the subject of the third charge was committed on 9 February 1999. A group of three young men, including the applicant, Saville and a man named Campos, entered a service station which they had decided to rob. Campos was armed with a kitchen knife and Saville with a club lock. Once again, the applicant bought a…

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 R v Aiken

Details

AGLC: R v Aiken [2001] NSWCCA 40
Case: [2001] NSWCCA 40
Decision Date: 14 February 2001

CaseChat Overview and Summary

In the case of Regina v Matthew Clifford Aiken, the appellant challenged the sentences imposed on him by the District Court for three offences, including robbery, being carried in a conveyance without consent, and assault with intent to rob while armed. The Court of Criminal Appeal granted the appellant leave to appeal and allowed the appeal, re-sentencing him to a lesser sentence. The appellant, Matthew Aiken, had pleaded guilty to the three charges and was sentenced by Judge O'Reilly to various terms of imprisonment. The appellant argued that the sentencing judge made several errors, including mischaracterizing him as an armed robber, not considering his age and level of contrition, and not sufficiently weighing his potential for rehabilitation. The court rejected these arguments but found that the sentencing judge failed to take into account the appellant's participation in a residential drug rehabilitation program, which amounted to quasi-custody. The court concluded that the sentencing judge's exercise of discretion miscarried, and it was necessary to re-sentence the appellant. The Court of Criminal Appeal allowed the appeal and re-sentenced the appellant to a lesser sentence, taking into account the time spent in the rehabilitation program.

The Court of Criminal Appeal held that the appellant was entitled to a credit of four months for the time spent in quasi-custody in the Teen Challenge Program. The court proposed to re-sentence the appellant to a total sentence of imprisonment for five years and four months, with a non-parole period of three years and two months. The court granted leave to appeal and allowed the appeal, quashing the sentences imposed by Judge O'Reilly and substituting the proposed sentences. The appellant's earliest eligibility for release on parole will be 3 August 2001.

Orders