R v Blake - [2003] NSWCCA 113

CITATION: R v BLAKE [2003] NSWCCA 113

HEARING DATE(S): 28 April 2003

JUDGMENT DATE:
28 April 2003

JUDGMENT OF: Hulme J at 1; Simpson J at 29

DECISION: Leave to appeal granted; appeal dismissed

PARTIES :
Regina
Edward Richard Rex BLAKE

FILE NUMBER(S): CCA 60015 of 2003

COUNSEL: Crown: MC Grogan
Appellant: AC Haesler

SOLICITORS: Crown: SE O'Connor
Appellant: DJ Humphreys

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0657

LOWER COURT
JUDICIAL OFFICER : Twigg DCJ

- 1 -

No: 60015/03

HULME J
SIMPSON J

R v Edward Richard BLAKE

Judgment

1 HULME J: On 10 October 2002 the abovenamed Applicant for leave to appeal was sentenced by Judge Twigg in respect of three charges to which he had pleaded guilty. The first charge was that on 7 January 2002 he did break and enter premises with intent – an offence which under section 113(1) of the Crimes Act carries a maximum penalty of ten years imprisonment.

2 The second charge was that on 7 January he did break and enter and steal a quantity of phone cards, cigarettes and cigars – an offence which under section 112(1) of the Crimes Act carries a maximum penalty of fourteen years imprisonment.

3 The third charge was that on or about 5 February 2002 he received a quantity of computer equipment – an offence which under section 188 of the Crimes Act carries a maximum penalty of ten years imprisonment.

4 In respect of the first count the Applicant was sentenced to a fixed term of imprisonment of 3 years from 10 October 2002. In respect of the second count he was sentenced a term of imprisonment for 4½ years including a non-parole period of 3 years, both periods also commencing on 10 October 2002. In respect of the third count he was sentenced to a fixed term of imprisonment for 12 months also dating from 10 October 2002.

5 The Applicant had been in prison in the past. In an ERISP he said that he was contacted and told there would be some money in it for him if he opened a placed up. He and two other persons went to an abandoned hairdresser’s premises where the Applicant using a tool he had acquired as an incident of some earlier employment levered the door or door frame which gave way. The Applicant then retired and sat in a car nearby acting as a lookout. The two persons with him then entered the hairdressers shop and broke into an adjoining tobacconists stealing items from those premises. For his assistance, the Applicant was given 10 cartons of cigarettes, some phone cards and an amount of $1,500. His breaking into the hairdresser’s shop was the subject of the first count and his acting as lookout for the offence against the tobacconists’ shop was the offence of the second count. He said he knew what the others were doing when they were breaking into the tobacconists he knew it was…

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 Blake

Details

AGLC: R v Blake [2003] NSWCCA 113
Case: [2003] NSWCCA 113
Decision Date: 28 April 2003

CaseChat Overview and Summary

In the case of R v Blake, the appellant was convicted of three offences and sentenced to imprisonment by Judge Twigg. The appellant appealed against the severity of the sentence, arguing it was manifestly excessive considering his cooperation with the police, his guilty plea, demonstrated remorse, and willingness to accept responsibility. The Court of Criminal Appeal was required to decide whether the sentence was indeed manifestly excessive and if there was any error in the judge's consideration of the appellant's role in the crimes.

The Court considered the nature and seriousness of the offences, the appellant's criminal history, and the principles of sentencing. The Court noted that the sentences imposed were substantially less than the maximum penalties prescribed by law for the offences. The Court also found that the appellant's criminal history showed a pattern of persistent dishonesty, and that previous sentences had not deterred him from reoffending. The Court held that the deterrence of the appellant and protection of the community were important considerations in sentencing. The Court further held that the judge had erred in considering all offenders equally blameworthy, but the appellant's role in the offences was substantial, and thus, the sentence was not manifestly excessive.

The Court granted leave to appeal but dismissed the appeal, affirming the sentences imposed by the District Court. The Court emphasized the seriousness of the offences and the need for substantial punishment to deter the appellant and protect the community. The Court also suggested that the prosecutor needed re-education regarding the appropriate level of punishment for such offences.

The final orders of the Court were that the application for leave to appeal was granted but the appeal was dismissed, affirming the sentences imposed by Judge Twigg.

Orders