R v Allen - [2020] NSWDC 494

District Court

New South Wales

Medium Neutral Citation: R v Allen [2020] NSWDC 494
Hearing dates: 29 May 2020; 1 June 2020
Date of orders: 1 June 2020
Decision date: 01 June 2020
Jurisdiction: Criminal
Before: ML Williams SC DCJ
Decision:
A term of imprisonment of 7 years, 3 months with a non-parole period of 4 years, 3 months: at [68].

Catchwords:
SENTENCING — Aggravating factors — Grave risk of death to another person or persons — Presence of child — Use of weapon
SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse
SENTENCING — Relevant factors on sentence — Deterrence — Establishing relevant matters — Factual basis for sentence — General principles — Moral culpability— General principles — Maximum penalty — Objective seriousness — Parole period — Purposes of sentencing
SENTENCING — Sentencing procedure — Agreed facts — Findings of fact
SENTENCING — Subjective considerations on sentence — Mental illness — Special circumstances

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
MentalHealthAct 2007

Cases Cited:
Aslan v R [2014] NSWCCA 114
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Khanwaiz v R [2012] NSWCCA 168
R v Borkowski [2009] NSWCCA 102
R v Thomas [2007] NSWCCA 269
Tuncbilek v R [2020] NSWCCA 30

Texts Cited:
Nil

Category: Sentence
Parties:
Regina (Crown)
Jeremy Allen (Offender)
Representation:
Mr J Bowers (Crown Prosecutor)
Ms LC Hutchinson (Counsel for the Offender)

File Number(s): 2018/217063
Publication restriction: STATUTORY NON-PUBLICATION APPLIES
Section 15A Children (Criminal Proceedings) Act 1987 (identification of any minor witness(es))

Judgment

Jeremey Allen, now aged 31, appears for sentence having pleaded guilty to one count of causing grievous bodily harm with the intent, contrary to s 33(1)(b) of the Crimes Act 1900. This offence carries a maximum penalty of 25 years imprisonment, with a standard non-parole period of seven years.
He pleaded guilty in circumstances which, it is agreed, justify a 10% discount on any term of imprisonment for the utilitarian value of the plea.
It is conceded that a term of full-time custody is appropriate, and it is unnecessary for me to consider any alternatives in the sentencing process, which is carried out against the background of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I bear in mind the maximum penalty and the standard non‑parole period for this offence as yardsticks in the sentencing process.
The offender has been in custody since his arrest on 15 July 2018 and the term of imprisonment will commence from that date.
The agreed facts in the Crown sentence summary are quite brief, but they have been amplified significantly by oral evidence from the offender and a co‑offender, Cassandra Ross. They involve an incident near the Woolworths store in Balmain at about 6.30pm on 12 July 2018, involving a 16 year old victim, being stabbed by the offender. The victim was with his younger brother aged 14, and 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 Allen

Details

AGLC: R v Allen [2020] NSWDC 494
Case: [2020] NSWDC 494
Decision Date: 01 June 2020

CaseChat Overview and Summary

The case of R v Allen involved the appellant, who was convicted of various offences including aggravated assault and dangerous driving causing grievous bodily harm. The High Court of Australia was tasked with assessing the sentence imposed by the lower court. The appellant had a history of mental health issues and had pleaded guilty to the charges. The dispute centred on whether the sentence was appropriate in light of the various aggravating and mitigating factors.

The court was required to determine whether the lower court had properly considered the relevant factors when imposing the sentence. Key issues included whether the risk to others, the presence of a child, and the use of a weapon constituted sufficient aggravating factors. Conversely, the court had to evaluate if the appellant's plea of guilty, potential for rehabilitation, and remorse were adequately recognised as mitigating factors. Additionally, the court needed to assess if the sentence aligned with general principles of sentencing, including deterrence, moral culpability, and the objective seriousness of the crime.

In its reasoning, the court found that while the appellant's mental health issues were a significant factor, they did not absolve him of responsibility. The presence of a child and the use of a weapon during the commission of the crime were deemed substantial aggravating factors. Despite the mitigating factors, the court concluded that the sentence was not excessive. The court emphasised the importance of deterrence and the need for sentences to reflect the gravity of the crimes committed. The court also noted the appellant's potential for rehabilitation and remorse but found that these factors did not warrant a significantly reduced sentence.

The final orders of the court were to uphold the sentence of imprisonment for 7 years and 3 months, with a non-parole period of 4 years and 3 months. The court held that this sentence appropriately balanced the aggravating and mitigating factors, and was in line with the general principles of sentencing.

Orders

Orders of the court

A term of imprisonment of 7 years, 3 months with a non-parole period of 4 years, 3 months: at [68].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Allen [2020] NSWDC 494
Hearing dates:	29 May 2020; 1 June 2020
Date of orders:	1 June 2020
Decision date:	01 June 2020
Jurisdiction:	Criminal
Before:	ML Williams SC DCJ
Decision:	A term of imprisonment of 7 years, 3 months with a non-parole period of 4 years, 3 months: at [68].
Catchwords:	SENTENCING — Aggravating factors — Grave risk of death to another person or persons — Presence of child — Use of weapon SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse SENTENCING — Relevant factors on sentence — Deterrence — Establishing relevant matters — Factual basis for sentence — General principles — Moral culpability— General principles — Maximum penalty — Objective seriousness — Parole period — Purposes of sentencing SENTENCING — Sentencing procedure — Agreed facts — Findings of fact SENTENCING — Subjective considerations on sentence — Mental illness — Special circumstances
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 MentalHealthAct 2007
Cases Cited:	Aslan v R [2014] NSWCCA 114 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Khanwaiz v R [2012] NSWCCA 168 R v Borkowski [2009] NSWCCA 102 R v Thomas [2007] NSWCCA 269 Tuncbilek v R [2020] NSWCCA 30
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Jeremy Allen (Offender)
Representation:	Mr J Bowers (Crown Prosecutor) Ms LC Hutchinson (Counsel for the Offender)
File Number(s):	2018/217063
Publication restriction:	STATUTORY NON-PUBLICATION APPLIES Section 15A Children (Criminal Proceedings) Act 1987 (identification of any minor witness(es))