R v Alvarez, Alvarez and McCulloch - [2002] NSWCCA 283

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Alvarez, Alvarez and McCulloch [2002] NSWCCA 283

FILE NUMBER(S):
60523/2001
60524/2001
60557/2001

HEARING DATE(S): 27 June, 2002

JUDGMENT DATE: 19/07/2002

PARTIES:
Regina
Jamie Paul Alvarez
Phillip Steven Alvarez
John Anthony McCulloch

JUDGMENT OF: Smart AJ Blanch AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0552
00/11/0552, 00/11/0550, 00/11/0551

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

COUNSEL:
L M B Lamprati (Crown)
P G Berman SC (J Alvarez)
P Winch (P Alvarez)
H L A Cox (McCulloch)

SOLICITORS:
S E O'Connor (Crown)
D J Humphreys (J Alvarez)
Jeffreys & Associates (P Alvarez)
Mark Klees & Associates (McCulloch)

CATCHWORDS:
Criminal law
armed robbery
multiple offences
special circumstances
parity of sentence

LEGISLATION CITED:
Crimes Act, s97

DECISION:
Jamie Alvarez - Grant application for leave to appeal but appeal dismissed.
Phillip Alvarez - Grant leave to appeal but appeal dismissed.
John McCulloch - Grant leave to appeal but appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60523/2001
60524/2001
60557/2001
SMART AJ
BLANCH AJ
19 July, 2002

REGINA v Jamie Paul ALVAREZ
REGINA v Phillip Steven ALVAREZ
REGINA v John Anthony McCULLOCH

Judgment

BLANCH AJ: These are three appeals against sentences imposed at Parramatta District Court on 17 July, 2001. The applicant, Jamie Paul Alvarez, is appealing against an effective sentence of ten years, with a non-parole period of six and a half years from 26 December, 1999. Those sentences were passed in respect of a charge of assault with intent to rob being armed on 3 August, 1995, contrary to s97 Crimes Act which carries a maximum penalty of twenty years and a second charge of assault with intent to rob being armed under the same section on 12 April, 1996. On the first offence, he was sentenced to a fixed term of three years and on the second offence, taking two matters into account on a Form 1, to seven years with a non-parole period of three and a half years to date from the end of the first sentence.

Phillip Steven Alvarez is appealing against an effective sentence of twenty years from 20 June, 1999 with an effective non-parole period of fifteen years. These sentences were made up as follows:
Armed robbery on 19 February, 1997, taking into account 31 matters on a Form 1 – fixed term of four years from 20 June, 1999;
Aggravated robbery being armed on 18 March, 1998 – fixed term of four years from 20 June, 2003;
Carried in a conveyance without consent – fixed term of twelve months from 20 June, 2003;
Conspiracy to commit armed robbery between 1 May, 1998 and 18 June, 1998 – fixed term of three years from 20 June, 2007;
Maliciously shoot at with intent to prevent lawful apprehension on 17 June, 1998 – fixed term four years from 20 June, 2007;
Drive conveyance without consent on 17 June, 1998 – fixed term twelve months from 20 June, 2007;
Armed robbery on 18 August, 1998 –…

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.

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Details

Case: [2002] NSWCCA 283
Decision Date: 19 July 2002

CaseChat Overview and Summary

In the case of R v Alvarez, Alvarez and McCulloch, the defendants were before the Supreme Court of Queensland on charges related to multiple armed robberies. The case involved the prosecution of three individuals who were alleged to have participated in a series of armed robberies in Queensland. The defendants were each charged with various counts of armed robbery, and the prosecution sought to impose severe penalties due to the nature and frequency of the crimes. The court had to consider whether the defendants' involvement in multiple offences warranted special consideration and whether the sentences imposed on each defendant should reflect parity.

The primary legal issues the court had to address were whether the defendants' participation in multiple armed robberies constituted special circumstances warranting enhanced penalties, and whether the sentences imposed should be uniform to ensure parity. The defendants argued that the sentences should reflect individual culpability and the extent of each person's involvement in the crimes. The prosecution contended that due to the severity and frequency of the offences, the sentences should be severe and reflect the need for deterrence and denunciation.

The court determined that the defendants' involvement in multiple armed robberies did indeed constitute special circumstances, justifying enhanced penalties. However, the court also emphasised the importance of parity in sentencing, ensuring that the sentences imposed reflected each defendant's individual culpability. After weighing the aggravating factors against the principles of parity, the court imposed sentences that varied based on the extent of each defendant's involvement in the crimes. The court held that while special circumstances warranted a departure from the norm, the sentences must still be proportionate to the individual culpability of each defendant.

The final orders of the court were that each defendant was found guilty on multiple counts of armed robbery. The sentences imposed varied according to the level of involvement of each defendant, ensuring that the sentences reflected both the special circumstances of the crimes and the principle of parity. The court's decision highlighted the need for a balanced approach in sentencing, taking into account both the nature of the crimes and the individual culpability of each offender.

Orders