R v Bell and Cubby - [2023] NSWDC 581

District Court

New South Wales

Medium Neutral Citation: R v Bell and Cubby [2023] NSWDC 581
Hearing dates: 27/10/23
Date of orders: 27/10/23
Decision date: 27 October 2023
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
BELL:
Re Seq 4 Armed robbery – Convicted and sentenced to a term of imprisonment of 3 years 4 months with a NPP of 2 years (9/11/22-8/11/24). I find special circumstances. Form 1 and 25 percent discount taken into account.
I direct that a copy of the psychological report in Exh A on sentence be sent to Justice Health and Corrective Services.
CUBBY:
Convicted and sentenced to an aggregate term of imprisonment of 5 years with a NPP of 3 years (10/9/22-9/9/25). I find special circumstances.
Indicative sentences (25 percent discount taken into account):
Seq 13 Break enter and steal – 2 years 10 months (Form 1 taken into account).
Seq 12 Robbery – 2 years 11 months (Form 1 taken into account).
Seq 9 Armed robbery – 3 years 2 months.
Seq 8 Armed robbery – 3 years 5 months (Form 1 taken into account).
I direct that a copy of the psychologist report in Exh A on sentence be sent to Justice Health and Corrective Services.
I refer Mr Cubby to the Drug Court for consideration for admission to the Compulsory Drug Treatment Program.

Catchwords:
Crime – Sentence – Robbery armed with an offensive weapon – Break enter and steal

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

Cases Cited:
Attorney-General’s application under s 37 of the Crimes (Sentencing Procedure Act) 1999 (No 1) (2002)56 NSWLR 146
Bugmy v The Queen (2013) 249 CLR 571
R v Millwood [2012] NSWCCA 2
Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324
BP v R [2010] NSWCCA 159
R v Henry and Others (1999) 106 A Crim R 149

Category: Sentence
Parties: NSW DPP – Crown
Jason Bell – Offender
Zane Cubby - Offender
Representation: Ms Shepherd for Crown
Mr Ye for Cubby
Ms Dalrymple for Bell

File Number(s): 22/21978, 22/223930
Publication restriction: None

sentence

The offenders, Mr Jason Bell and Zane Cubby, are for sentence today, in Mr Bell’s case for an offence under s 97 of the Crimes Act 1900 of robbery armed with an offensive weapon. The maximum penalty for that offence is 20 years imprisonment. In sentencing him for that offence, he asked that I take into account two other offences which are on a Form 1 document, which I will do.
In relation to Mr Cubby, he is to be sentenced for two offences of robbery armed with an offensive weapon, each of course carrying a maximum penalty of 20 years imprisonment. In relation to one of those offences, he asks that I take into account another offence on a Form 1 document. He is also to be sentenced for an offence of robbery under s 94(a) for which the maximum penalty is 14 years imprisonment. Again, there is an offence on 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 Bell and Cubby

Details

AGLC: R v Bell and Cubby [2023] NSWDC 581
Case: [2023] NSWDC 581
Decision Date: 27 October 2023

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of R v Bell and Cubby involved two defendants, Bell and Cubby, who were jointly charged with multiple criminal offences. The charges included armed robbery, break and enter with intent to steal, and robbery. The court was required to consider the nature and severity of the crimes, the defendants' criminal history, and any mitigating factors before determining an appropriate sentence.

The primary legal issues the court had to address were the appropriate sentencing for each defendant considering the seriousness of the crimes and any relevant mitigating factors. The court had to assess whether the crimes warranted a term of imprisonment and, if so, the length of the sentence and any non-parole periods. Additionally, the court needed to consider whether any special circumstances applied to either defendant that could influence the sentence.

In delivering the judgment, the court found that Bell was guilty of armed robbery and sentenced him to a term of imprisonment of three years and four months, with a non-parole period of two years. The court found special circumstances in Bell's case and took into account a 25 percent discount due to his guilty plea. The court also directed that a copy of the psychological report on sentence be sent to Justice Health and Corrective Services. For Cubby, who was found guilty of multiple offences, the court imposed an aggregate term of imprisonment of five years, with a non-parole period of three years. The court again found special circumstances and applied a 25 percent discount for his guilty plea. The court also referred Cubby to the Drug Court for consideration of the Compulsory Drug Treatment Program and directed that a copy of the psychological report on sentence be sent to Justice Health and Corrective Services.

The final orders of the court included the sentencing of Bell and Cubby, the determination of non-parole periods, the direction for the psychological reports to be sent to Justice Health and Corrective Services, and the referral of Cubby to the Drug Court for consideration of the Compulsory Drug Treatment Program.

Orders

Orders of the court

BELL:

Re Seq 4 Armed robbery – Convicted and sentenced to a term of imprisonment of 3 years 4 months with a NPP of 2 years (9/11/22-8/11/24). I find special circumstances. Form 1 and 25 percent discount taken into account.

I direct that a copy of the psychological report in Exh A on sentence be sent to Justice Health and Corrective Services.

CUBBY:

Convicted and sentenced to an aggregate term of imprisonment of 5 years with a NPP of 3 years (10/9/22-9/9/25). I find special circumstances.

Indicative sentences (25 percent discount taken into account):

Seq 13 Break enter and steal – 2 years 10 months (Form 1 taken into account).

Seq 12 Robbery – 2 years 11 months (Form 1 taken into account).

Seq 9 Armed robbery – 3 years 2 months.

Seq 8 Armed robbery – 3 years 5 months (Form 1 taken into account).

I direct that a copy of the psychologist report in Exh A on sentence be sent to Justice Health and Corrective Services.

I refer Mr Cubby to the Drug Court for consideration for admission to the Compulsory Drug Treatment Program.

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 Bell and Cubby [2023] NSWDC 581
Hearing dates:	27/10/23
Date of orders:	27/10/23
Decision date:	27 October 2023
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	BELL: Re Seq 4 Armed robbery – Convicted and sentenced to a term of imprisonment of 3 years 4 months with a NPP of 2 years (9/11/22-8/11/24). I find special circumstances. Form 1 and 25 percent discount taken into account. I direct that a copy of the psychological report in Exh A on sentence be sent to Justice Health and Corrective Services. CUBBY: Convicted and sentenced to an aggregate term of imprisonment of 5 years with a NPP of 3 years (10/9/22-9/9/25). I find special circumstances. Indicative sentences (25 percent discount taken into account): Seq 13 Break enter and steal – 2 years 10 months (Form 1 taken into account). Seq 12 Robbery – 2 years 11 months (Form 1 taken into account). Seq 9 Armed robbery – 3 years 2 months. Seq 8 Armed robbery – 3 years 5 months (Form 1 taken into account). I direct that a copy of the psychologist report in Exh A on sentence be sent to Justice Health and Corrective Services. I refer Mr Cubby to the Drug Court for consideration for admission to the Compulsory Drug Treatment Program.
Catchwords:	Crime – Sentence – Robbery armed with an offensive weapon – Break enter and steal
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney-General’s application under s 37 of the Crimes (Sentencing Procedure Act) 1999 (No 1) (2002)56 NSWLR 146 Bugmy v The Queen (2013) 249 CLR 571 R v Millwood [2012] NSWCCA 2 Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324 BP v R [2010] NSWCCA 159 R v Henry and Others (1999) 106 A Crim R 149
Category:	Sentence
Parties:	NSW DPP – Crown Jason Bell – Offender Zane Cubby - Offender
Representation:	Ms Shepherd for Crown Mr Ye for Cubby Ms Dalrymple for Bell
File Number(s):	22/21978, 22/223930
Publication restriction:	None