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R v Black

R v Black

Case [2022] NSWDC 236 11 March 2022

Reckless Wounding

Sentencing

Early Guilty Plea

Objective Seriousness

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District Court

New South Wales

Medium Neutral Citation: R v Black [2022] NSWDC 236
Hearing dates: 11 March 2022
Date of orders: 11 March 2022
Decision date: 11 March 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 3 years with a non-parole period of 1 year 6 months

Catchwords:
CRIME – Robbery armed with offensive weapon - Reckless wounding in company
SENTENCING - Relevant factors on sentence – early guilty - two separate offences - assessing objective seriousness - relevance of maximum penalties – parity- custodial sentences required - strong subjective case - short period of criminality - sentencing young offenders – detrimental consequences of imprisonment considered.

Legislation Cited:
Crimes Act 1900

Cases Cited:
BP v R [2010] NSWCCA 159
Clarke-Jeffries v R [2019] NSWCCA 56
Howard v R [2019] NSWCCA 109
KT v R [2008] NSWCCA 51
Muldrock v The Queen (2011) 244 CLR 120
Munda v Western Australia [2013] HCA 38
Power v The Queen (1974) 131 CLR 623
R v AEM [2002] NSWCCA 58
R v Henry (1999) 46 NSWLR 346
R v Herring (1956) 73 WN (NSW) 203
R v Loveridge [2014] NSWCCA 120
R v Naqelevuki [2021] NSWDC 748
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

Texts Cited:
Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011
Rethinking sentencing for young adult offenders, Victorian Sentencing Advisory Council, December 2019

Category: Sentence
Parties: Luke Paul Black (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr E Anderson (for the offender)
Solicitors:
Morrisons Law (for the offender)
Mr L McGonigal (for Director of Public Prosecutions)

File Number(s): 2020/00231194; 2021/00091799

SENTENCE – EX TEMPORE REVISED

Introduction

In the middle of 2020 Luke Black involved himself in two serious offences. On 25 July 2020 he was involved in an armed robbery as the driver. On 7 August 2020 he attended a man’s premises and wounded him in a reckless manner while in company of two others. Armed robbery s 97(1) Crimes Act 1900 carries a maximum penalty of 20 years imprisonment. Reckless wounding s 35(3) Crimes Act carries a maximum penalty of ten years imprisonment and Parliament has said that for an offence which falls, taking into account only objective features, in the middle of the range there is a minimum period of four years imprisonment.
Those maximums and that standard non‑parole period are important guides to the exercise of my sentencing discretion but they are guides, they do not prescribe the sentence to be imposed, or the minimum to be imposed. I do not start with the maximum or the standard non-parole period and make proportional deductions from it, but content has to be given to the standard non‑parole period.
I am indebted to Mr McGonigal, solicitor for the Director of Public Prosecutions, for his careful written submissions, the cases to which he has referred me to, and his summary of those cases. Every offence and every offender is individual but here there are a number of…

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 Black

Details

AGLC: R v Black [2022] NSWDC 236
Case: [2022] NSWDC 236
Decision Date: 11 March 2022

CaseChat Overview and Summary

The case of R v Black involved the appellant, Black, who was convicted of two separate offences: robbery armed with an offensive weapon and reckless wounding in company. The case was heard in the High Court of Australia, which was tasked with determining the appropriate sentence for Black's crimes. The legal issues before the court centred on the appropriate assessment of the objective seriousness of the crimes, the relevance of the maximum penalties for each offence, and the necessity of imposing custodial sentences. The court was also required to consider the principles of parity in sentencing, the appellant's early guilty plea, the short period of criminal activity, and the potential detrimental consequences of imprisonment, particularly given Black's youth.

In addressing these issues, the court began by emphasising the importance of assessing the objective seriousness of the crimes independently from the maximum penalties prescribed by law. It was noted that while the maximum penalties for the offences could provide a guideline, the specific circumstances of the case and the nature of the offences themselves must also be taken into account. The court highlighted the principle of parity in sentencing, which requires that similar offences be treated similarly unless there are compelling reasons to differentiate. In this instance, the court found that custodial sentences were warranted given the nature and seriousness of the crimes. The court also considered Black's early guilty plea, which warranted a discount in the sentence, as well as the short period of criminal activity and the appellant's youth. Despite these mitigating factors, the court concluded that the crimes were of sufficient seriousness to necessitate a custodial sentence.

The court ultimately determined that an aggregate sentence of three years was appropriate, with a non-parole period of one year and six months. This sentence balanced the need to hold Black accountable for his actions with the potential detrimental consequences of imprisonment, particularly considering his age. The court's decision provided a clear and reasoned approach to sentencing in this complex case, taking into account all relevant factors and ensuring a just outcome.

Orders

Orders of the court

Aggregate sentence of 3 years with a non-parole period of 1 year 6 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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Citations

R v Black [2022] NSWDC 236

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Naqelevuki [2021] NSWDC 748
Citation 1 (Para 7)

…I have sentenced Mr Naqelevuki: R v Naqelevuki [2021] NSWDC 748. In short summary he, disguised in a rudimentary fashion and armed with a claw hammer, entered the petrol station. The attendant saw him and made her escape. The CCTV which is summarised in the agreed facts shows the distress of the attendant and two p…
Howard v R [2019] NSWCCA 109
Citation 2 (Para 25)

…emotional a psychological immaturity can contribute to their offending: Clarke-Jeffries v R [2019] NSWCCA 56; BP v R [2010] NSWCCA 159 ; Howard v R [2019] NSWCCA 109.…
Clarke-Jeffries v R [2019] NSWCCA 56
Citation 3 (Para 25)

…rm to society’s norms. It also accepted that cognitive, emotional a psychological immaturity can contribute to their offending: Clarke-Jeffries v R [2019] NSWCCA 56; BP v R [2010] NSWCCA 159 ; Howard v R [2019] NSWCCA 109.…
R v Loveridge [2014] NSWCCA 120
Citation 4 (Para 34)

…ed by sentences that carry a very significant degree of general deterrence as as a means of protection of the community. That mater was R v Loveridge [2014] NSWCCA 120 also R v AEM [2002] NSWCCA 58 at [92].…
Munda v Western Australia [2013] HCA 38
Citation 5 (Para 35)

…The majority in the High Court in Munda v Western Australia [2013] HCA 38 at [52] to [58] noted however the countervailing position where it was said it may be argued that general deterrence has little rational claim on the discretion on relation to crimes which are not premeditated. And, although these crimes w…
Muldrock v The Queen [2011] HCA 39
Citation 6 (Para 24)

…hat is their blameworthiness. That involves a consideration of subjective factors, background, age, state of maturity and mental state at the time: Muldrock v The Queen (2011) 244 CLR 120.…
BP v R [2010] NSWCCA 159
Citation 7 (Para 25)

…also accepted that cognitive, emotional a psychological immaturity can contribute to their offending: Clarke-Jeffries v R [2019] NSWCCA 56; BP v R [2010] NSWCCA 159 ; Howard v R [2019] NSWCCA 109.…
KT v R [2008] NSWCCA 51
Citation 8 (Para 26)

…cing a mature adult of the same offence. Allowance should be made for an offender’s youth and immaturity not just his or her biological age: KT v R [2008] NSWCCA 51.…
R v AEM [2002] NSWCCA 58
Citation 9 (Para 34)

…ry significant degree of general deterrence as as a means of protection of the community. That mater was R v Loveridge [2014] NSWCCA 120 also R v AEM [2002] NSWCCA 58 at [92].…
R v Simpson [2001] NSWCCA 534
Citation 10 (Para 36)

…ody and the total sentence. The minimum period should properly reflect the gravity of his offences and the other purposes of sentencing : R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, Bugmy v The Queen (1990) 169 CLR 525; Power v The Queen (1974) 131 CLR 623.…
Regina v Simpson [1999] NSWCCA 367
Citation 11 (Para 36)

…entence. The minimum period should properly reflect the gravity of his offences and the other purposes of sentencing : R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, Bugmy v The Queen (1990) 169 CLR 525; Power v The Queen (1974) 131 CLR 623.…
R v Henry [1999] NSWCA 111
Citation 12 (Para 11)

…ident and took the most active role. He used the hammer inside the premises to achieve their aims, small though they were. The guideline in R v Henry (1999) 46 NSWLR 346 is a good starting point for matters such as this. And, as Mr Anderson, who appears for Black, indicates most of the favourable aspects of Henry appl…
Bugmy v The Queen [1990] HCA 18
Citation 13 (Para 36)

…ld properly reflect the gravity of his offences and the other purposes of sentencing : R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, Bugmy v The Queen (1990) 169 CLR 525; Power v The Queen (1974) 131 CLR 623.…
Power v The Queen [1974] HCA 26
Citation 14 (Para 36)

…offences and the other purposes of sentencing : R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, Bugmy v The Queen (1990) 169 CLR 525; Power v The Queen (1974) 131 CLR 623.…

Legislation Cited

Crimes Act 1900 (ACT)
1 mention (from Para 1)

Medium Neutral Citation:	R v Black [2022] NSWDC 236
Hearing dates:	11 March 2022
Date of orders:	11 March 2022
Decision date:	11 March 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 3 years with a non-parole period of 1 year 6 months
Catchwords:	CRIME – Robbery armed with offensive weapon - Reckless wounding in company SENTENCING - Relevant factors on sentence – early guilty - two separate offences - assessing objective seriousness - relevance of maximum penalties – parity- custodial sentences required - strong subjective case - short period of criminality - sentencing young offenders – detrimental consequences of imprisonment considered.
Legislation Cited:	Crimes Act 1900
Cases Cited:	BP v R [2010] NSWCCA 159 Clarke-Jeffries v R [2019] NSWCCA 56 Howard v R [2019] NSWCCA 109 KT v R [2008] NSWCCA 51 Muldrock v The Queen (2011) 244 CLR 120 Munda v Western Australia [2013] HCA 38 Power v The Queen (1974) 131 CLR 623 R v AEM [2002] NSWCCA 58 R v Henry (1999) 46 NSWLR 346 R v Herring (1956) 73 WN (NSW) 203 R v Loveridge [2014] NSWCCA 120 R v Naqelevuki [2021] NSWDC 748 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
Texts Cited:	Does Imprisonment Deter? A Review of the Evidence, Victorian Sentencing Advisory Council, April 2011 Rethinking sentencing for young adult offenders, Victorian Sentencing Advisory Council, December 2019
Category:	Sentence
Parties:	Luke Paul Black (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr E Anderson (for the offender) Solicitors: Morrisons Law (for the offender) Mr L McGonigal (for Director of Public Prosecutions)
File Number(s):	2020/00231194; 2021/00091799