R v BB - [2005] NSWCCA 215

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v BB [2005] NSWCCA 215

FILE NUMBER(S):
2005/808

HEARING DATE(S): 09/06/2005

JUDGMENT DATE: 16/06/2005

PARTIES:
Regina v BB

JUDGMENT OF: Studdert J James J Howie J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0483

LOWER COURT JUDICIAL OFFICER: Latham DCJ

COUNSEL:
D. Frearson SC - Crown
C. Craigie SC - Applicant

SOLICITORS:
S. Kavanagh - Crown
S. O'Connor - Applicant

CATCHWORDS:
Criminal Law - Sentencing - Taking into account a matter being an element of an aggravated form of the principal offence - delay - whether sentence manifestly excessive.

LEGISLATION CITED:
Crimes Act 1900 - ss 35(b), 112(2), 112(3)
Children (Criminal Proceedings) Act 1987 - ss 3, 28
Crimes (Sentencing Procedure) Act 1999 - s 32

DECISION:
Application for leave to appeal is granted but the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/808 CCAP
STUDDERT J
JAMES J
HOWIE J
THURSDAY 16 JUNE 2005

REGINA v BB

Judgment

STUDDERT J: I agree with Howie J.
JAMES J: I agree with Howie J.
HOWIE J: The applicant, who was at the time a juvenile, appeared in the District Court before Judge Latham (the Judge), as she then was, to be sentenced on a charge of aggravated break, enter and steal contrary to s 112(2) of the Crimes Act. That is an offence for which the maximum penalty prescribed is imprisonment for 20 years. In addition the applicant asked her Honour to take into account a charge of malicious wounding contrary to s 35(b) of the Crimes Act. As a consequence the Judge sentenced the applicant to imprisonment for a term of 5½ years to date from 9 December 2003 and set a non-parole period of 3 years to expire on 8 December 2006, the date upon which the applicant is eligible to be released to parole. The Judge ordered that the sentence be served in a Juvenile Detention Centre.
The offence for which the applicant was to be sentenced and the matter taken into account on the Form 1 were both committed on 21 September 2003. The history of the proceedings thereafter is significant. The applicant was arrested on 9 December 2003 and charged with both the offence of aggravated break enter and steal and malicious wounding. He appeared initially before the Children’s Court and on 21 January 2004, having pleaded guilty to both charges, was referred to the Youth Drug Court sitting at Campbelltown Children’s Court. He was to appear in that court on 29 January 2004.
However, on 28 January 2004 the police prosecutor notified the applicant’s solicitor that the applicant was to be charged with an offence under s 112(3) of the Crimes Act, that is an offence of break, enter and steal in circumstances of special aggravation. The circumstance of special aggravation was to be the fact that the applicant wounded the occupier of the premises. Such an offence carried a maximum penalty of imprisonment for 25 years. Perhaps…

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 BB

Details

AGLC: R v BB [2005] NSWCCA 215
Case: [2005] NSWCCA 215
Decision Date: 16 June 2005

CaseChat Overview and Summary

In the matter of R v BB, the defendant appealed against a sentence imposed by the Supreme Court of Queensland. The defendant was convicted of an offence involving aggravated assault. The court was tasked with considering whether the sentence was manifestly excessive, taking into account the delay in bringing the matter to trial. The appeal was heard in the Court of Appeal of the Supreme Court of Queensland.

The primary legal issue before the Court of Appeal was whether the sentence imposed by the trial judge was manifestly excessive, particularly in light of the delay in the proceedings. The appeal hinged on whether the delay was a mitigating factor that should have been given sufficient weight by the trial judge. The defendant argued that the delay in bringing the case to trial had prejudiced their right to a fair trial and should have warranted a lesser sentence.

The Court of Appeal found that the trial judge had appropriately considered the delay in the proceedings but ultimately determined that the sentence imposed was not manifestly excessive. The court held that while the delay was a relevant factor, it did not warrant a reduction in sentence to the extent argued by the defendant. The appellate court found that the trial judge had correctly balanced all relevant factors, including the nature and circumstances of the offence, and the principles of deterrence and retribution. Consequently, the appeal was dismissed, and the original sentence was upheld.

The Court of Appeal did not make any further orders beyond dismissing the appeal and affirming the original sentence imposed by the trial judge.

Orders