R v Bartholomew - [2021] NSWDC 307

District Court

New South Wales

Medium Neutral Citation: R v BARTHOLOMEW [2021] NSWDC 307
Hearing dates: 18 June 2021
Date of orders: 9 July 2021
Decision date: 09 July 2021
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced to an aggregate sentence of 5 years and 3 months with a non-parole period of 3 years and 4 months

Catchwords:
Sentence – Armed Robbery of taxi driver – two counts – Henry Guideline – breach of conditional liberty – offences committed days after release to parole – Offender receives little assistance when released

Legislation Cited:
Crimes Act 1900
Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
R v Henry & Ors (1999) 46 NSWLR 346
Qoro v R [2020] NSWCCA 276
Dungay v R [2020] NSWCCA 209
Veen v The Queen (No 2) (1988) 164 CLR 465
Valentine v R [2020] NSWCCA 116
Bugmy v The Queen [2013] HCA 37
Locke v R (2010) 207 A Crim R 34
White v R [2016] NSWCCA 190

Texts Cited:
2020/262344, 2020/262519

Category: Sentence
Parties: Regina
Alex Steven BARTHOLOMEW
Representation:
Counsel:
Ms C Mendes for the Offender
Solicitors:
Mr S Baumgarten, for the Director of Public Prosecutions

File Number(s): 2020/262344, 2020/262519
Publication restriction: No

Judgment

The offender was committed for sentence from the Wagga Wagga Local Court on 10 March 2021 in respect of two charges, namely that:

(He) on the 7th day of September 2020 at Kooringal in the State of New South Wales did rob Danny Kelly of certain property (namely) $245 cash, coin till, wallet and driver's license the property of Danny Kelly whilst being armed with an offensive weapon, namely a knife, contrary to s 97(1) of the Crimes Act 1900 and further

(He) on the 9th day of September 2020 at Kooringal in the State of New South Wales did rob Thomas Pearce of certain property (namely) $220 cash, the property of Thomas Pearce whilst being armed with an offensive weapon, namely a knife, contrary to s 97(1) of the Crimes Act 1900.

The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 18 June 2021 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.
The maximum penalty for both offences is 20 years imprisonment. There is no standard non-parole period. However as the offences are offences of armed robbery the Guideline Judgment in R v Henry & Ors (1999) 46 NSWLR 346 will need to be considered.

Facts

Despite the offences being very similar, bordering on the identical, and being committed two days apart, there are separate sentence bundles for each matter. The facts for both matters are contained on the one document. Both matters are armed robberies of taxi drivers at knife point.
Going to the offence of 7 September 2020 the victim Danny Kelly was 31 years of age. On Monday 7 September 2020 the victim was operating taxi cab registered TC-3199. At about…

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 Bartholomew

Details

AGLC: R v Bartholomew [2021] NSWDC 307
Case: [2021] NSWDC 307
Decision Date: 09 July 2021

CaseChat Overview and Summary

The appellant, Bartholomew, faced the Supreme Court in relation to two counts of armed robbery against a taxi driver. The accused had previously been convicted of armed robbery and released on parole. Despite the parole conditions, Bartholomew committed further robberies just days after his release. The matter was brought before the court to determine an appropriate sentence, considering the prior convictions and the nature of the new offences.

The court was tasked with deciding the appropriate sentence for the two armed robberies, taking into account the appellant's criminal history and the breach of parole conditions. The legal issues involved assessing the gravity of the current offences and their relation to the prior convictions, as well as the appropriate application of the Henry Guideline to determine a suitable sentence.

The court acknowledged the appellant's extensive criminal history and the serious nature of the current offences, which were committed shortly after his release on parole. The court considered the breach of parole and the minimal assistance provided to the appellant upon his release. After applying the Henry Guideline, the court determined that an aggregate sentence of 5 years and 3 months was appropriate, with a non-parole period of 3 years and 4 months. This sentence reflected the need for punishment and deterrence, while also considering the appellant's history and the specific circumstances of the offences.

Orders

Orders of the court

Sentenced to an aggregate sentence of 5 years and 3 months with a non-parole period of 3 years and 4 months

Background

Background to the litigation

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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 BARTHOLOMEW [2021] NSWDC 307
Hearing dates:	18 June 2021
Date of orders:	9 July 2021
Decision date:	09 July 2021
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced to an aggregate sentence of 5 years and 3 months with a non-parole period of 3 years and 4 months
Catchwords:	Sentence – Armed Robbery of taxi driver – two counts – Henry Guideline – breach of conditional liberty – offences committed days after release to parole – Offender receives little assistance when released
Legislation Cited:	Crimes Act 1900 Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v Henry & Ors (1999) 46 NSWLR 346 Qoro v R [2020] NSWCCA 276 Dungay v R [2020] NSWCCA 209 Veen v The Queen (No 2) (1988) 164 CLR 465 Valentine v R [2020] NSWCCA 116 Bugmy v The Queen [2013] HCA 37 Locke v R (2010) 207 A Crim R 34 White v R [2016] NSWCCA 190
Texts Cited:	2020/262344, 2020/262519
Category:	Sentence
Parties:	Regina Alex Steven BARTHOLOMEW
Representation:	Counsel: Ms C Mendes for the Offender Solicitors: Mr S Baumgarten, for the Director of Public Prosecutions
File Number(s):	2020/262344, 2020/262519
Publication restriction:	No