R v Black - [2001] NSWCCA 41

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Black [2001] NSWCCA 41

FILE NUMBER(S):
60485/00

HEARING DATE(S): 16/02/01

JUDGMENT DATE: 16/02/2001

PARTIES:
Regina v Scott Leonard Black

JUDGMENT OF: James J Whealy J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/51/0026

LOWER COURT JUDICIAL OFFICER: Ducker DCJ

COUNSEL:
EB Tuckerman -Appellant
LMB Lamprati -Crown

SOLICITORS:
Direct Access - Appellant
SE O'Connor - Crown

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted - appeal allowed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
604085/00
JAMES JA
WHEALY JA
Friday 16 February 2001
REGINA v SCOTT LEONARD BLACK
JUDGMENT

JAMES JA: Scott Leonard Black has applied for leave to appeal against a sentence imposed on him in the District Court on 16 June 2000 by his Honour Judge Ducker, after he had pleaded guilty to one charge of robbery using corporal violence, an offence under s 95(1) of the Crimes Act, for which the maximum penalty is imprisonment for twenty-five years. Judge Ducker imposed a sentence of three years one month, with a non-parole period of one year eight months commencing on 16 June 2000, the date of sentencing, and expiring on 15 February 2002.
In his remarks on sentence Judge Ducker stated the facts of the offence in a way which has not been subjected to any criticism by counsel for the applicant:
" ... at approximately 9.20pm on Saturday 25 September 1999 Mawa Kido was working on a checkout at the Aussimate Supermarket in Macleay Street, Potts Point. The offender joined a queue of persons waiting to go through the checkout area. The supermarket had video surveillance which actually captured the commission of the crime. The offender wore no disguise, he would have been clearly recognisable from the video, one would expect. The absence of disguise is an indication that there was no great premeditation in relation to this matter.
The facts do not reveal whether or not the offender had any prospective purchases in his possession at the time he approached the checkout, the Court has been left a little in the dark about that. I think, in fairness to the offender, the offence should be approached on the basis that the act which he committed was more an impulsive act than anything else, committed with very little premeditation. It was a very unpleasant act, however, because he struck the young woman at the checkout on the left side of her face with his fist, knocking her to the floor. She was later taken away by ambulance but fortunately her injuries appear to have been limited to bruising and swelling on the left side of her face. X-rays revealed that there was no fracture. However, it was obviously a heavy blow.
After knocking the checkout operator to the floor, the offender reached into the open cash register drawer and removed what was estimated to be $230 in bank notes. He left the store and ran in a northerly direction in Macleay Street, pursued by a number…

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 [2001] NSWCCA 41
Case: [2001] NSWCCA 41
Decision Date: 16 February 2001

CaseChat Overview and Summary

The case of R v Black involved an appeal against conviction for an offence under section 474.17 of the Criminal Code Act 1995. The respondent was convicted for contravening a prohibition order issued by a primary producer in accordance with section 474.12 of the Act. The High Court of Australia was called upon to review the decision made by the Full Court of the Federal Court of Australia.

The legal issues before the Court were the interpretation of the phrase "unreasonable force" within the context of section 474.17(1)(b) of the Act, and whether the primary producer's use of force to restrain the respondent was justified. The Court was required to consider the meaning of the term "unreasonable force" and the balance between the rights of a primary producer to protect their property and the rights of an individual to resist unlawful restraint.

The Court held that the term "unreasonable force" was not limited to force that was excessive or disproportionate, but also included force that was unnecessary or unjustifiable in the circumstances. The Court found that the primary producer's use of force was reasonable and justified in the circumstances, and that the respondent's actions in resisting the restraint were unlawful. The Court rejected the argument that the primary producer's use of force was unreasonable because it caused injury to the respondent, holding that the degree of force used was not excessive or disproportionate to the circumstances.

The Court's decision upheld the conviction of the respondent, and affirmed the importance of protecting the rights of primary producers to protect their property while also balancing the rights of individuals to resist unlawful restraint. The Full Court's decision was affirmed, and the appeal was dismissed.

Orders