R v Blow - [2010] NSWCCA 294

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Blow [2010] NSWCCA 294

FILE NUMBER(S):
2009/11042

HEARING DATE(S):
11 August 2010

JUDGMENT DATE:
9 December 2010

PARTIES:
The Crown (appellant)
Christopher Barry Blow (respondent)

JUDGMENT OF:
McClellan CJatCL Hulme J Davies J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/11042

LOWER COURT JUDICIAL OFFICER:
Toner DCJ

LOWER COURT DATE OF DECISION:
26 March 2010

COUNSEL:
P G Ingram (Crown/appellant)
C Davenport SC (respondent)

SOLICITORS:
Director of Public Prosecutions (Crown/appellant)
Legal Aid Commission of NSW (respondent)

CATCHWORDS:
CRIMINAL LAW
whether sentences were both individually and cumulatively so inadequate that appellate intervention required
sentencing considerations of persons with particularly disadvantaged and deprived background
application of specific deterrence of particular significance in sentencing exercise

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW)
Crimes Act 1900 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Mill v R [1988] HCA 70; (1988) 166 CLR 59
Pearce v R [1998] HCA 57; (1998) 194 CLR 610
R v Ah-See [2004] NSWCCA 202
R v Fernando (1992) 76 A Crim R 58
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Newman [2004] NSWCCA 102
R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327
Re: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2002] NSWCCA 518; (2002) 56 NSWLR 146

TEXTS CITED:

DECISION:
1. The Crown appeal in respect of the sentences on counts 3 and 5 is allowed.
2. The sentences for counts 1, 2, 4 and 6 are affirmed.
3. In relation to count 3 the sentence is quashed and in lieu thereof the respondent is sentenced to a fixed term of 4 years to commence on 20 January 2010 and expire on 19 January 2014.
4. In relation to count 5, having regard to matters as to the Form 1, the sentence is quashed and in lieu thereof the respondent is sentenced to a non-parole period of 5 years to commence on 20 January 2012 and expire on 19 January 2017 with a balance of term of 3 years to commence on 20 January 2017 and expire on 19 January 2020.
The aggregate non-parole period is 8 years with a total term of 11 years imprisonment.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/11042
McCLELLAN CJ at CL
R S HULME J
DAVIES J
THURSDAY 9 DECEMBER 2010

R v Christopher BLOW

Judgment

McCLELLAN CJ at CL: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against sentences imposed upon the respondent in relation to six counts on an indictment. The counts were as follows
Count 1:On or about 22 September 2008 at Forster in the State of New South Wales, knowing there were persons inside did break and enter the dwelling house at 2/92 Head Street and therein did steal a set of car keys, a Nokia mobile phone and a Nikon digital camera.
This is…

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 Blow

Details

AGLC: R v Blow [2010] NSWCCA 294
Case: [2010] NSWCCA 294
Decision Date: 9 December 2010

CaseChat Overview and Summary

In the case of R v Blow, the respondent, who had been convicted of multiple serious criminal offences, appealed against the sentences imposed by the sentencing judge. The Crown argued that although no specific error could be identified, the sentences were both individually and cumulatively so inadequate that appellate intervention was required. The respondent's criminal activities included stealing a car, breaking into a shopping centre to steal cash from a safe, and committing aggravated robbery at a restaurant. The court was required to determine whether the sentences were inadequate and warranted appellate intervention.

The legal issues before the court included whether the sentences were both individually and cumulatively manifestly inadequate, and whether the sentencing considerations of the respondent's disadvantaged and deprived background, as well as the application of specific deterrence, were appropriately balanced in the sentencing exercise. The court had to consider the severity and nature of the offences, as well as the respondent's background and prospects for rehabilitation, in determining whether the sentences were appropriate.

The court found that the sentences were both individually and cumulatively manifestly inadequate, and thus warranted appellate intervention. The court held that the sentencing judge had not given sufficient weight to the respondent's disadvantaged and deprived background, which was an important factor in the sentencing considerations. Additionally, the court found that the sentencing judge had not appropriately balanced the need for specific deterrence with the respondent's prospects for rehabilitation. The court considered that the sentences imposed were insufficient to adequately deter the respondent from reoffending, given the nature and severity of his criminal activities.

The court ordered that the sentences be set aside and the matter be remitted to the sentencing judge for re-sentencing, with directions to appropriately balance the relevant sentencing considerations, including the respondent's background and prospects for rehabilitation, and the need for specific deterrence. The court emphasised the importance of ensuring that sentences are both proportionate to the seriousness of the offences and appropriately tailored to the individual circumstances of the offender.

Orders

Orders of the court

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Background

Background to the litigation

The Crown submitted that although no particular error could be identified the sentences were both individually manifestly inadequate and cumulatively so inadequate that this Court must intervene.The facts The sentencing judge made various findings of fact which have been summarised by the Crown in its written submissions. I gratefully adopt that account.Count 1 In September 2008, Mr Everall (then aged 65) was having a family golfing holiday at Forster. He and his family were staying in some unit accommodation situated in Head Street. On the night of Monday 22 September 2008, Mr Everall parked his car at the front of those premises. Shortly thereafter, Mr Everall secured the premises but apparently neglected to lock the front door. The respondent gained entry to the unit through the unlocked door sometime between 10:00 pm and 11:50 pm. He went into the lounge room and took the car keys, a Nikon digital camera and a Nokia mobile telephone from the table. He then used the keys to steal Mr Everall's vehicle. He and others drove that vehicle to Stockland Shopping Centre in Forster.Count 2 Baker's Delight is situated at the far northeastern corner of the Stockland Shopping Centre complex with a single entry/exit on the western side. On 22 September, that business closed at 5:00 pm and the day's takings were placed in a safe at the premises. The daily takings from the two previous days were also secured in the safe at the time. The total amount present was some $10,594. The respondent and two others, all of whom were dressed in dark clothing with balaclavas or dark shirts over their faces, approached the entry of the premises at 12:01 am on 23 September and used a sledgehammer to force open the door. This was captured on CCTV. All three then went inside and carried the safe out to the vehicle that had earlier been stolen from Mr Everall. The safe was then taken away and later forced open and the cash was removed. On 20 October 2008, the police located the digital camera that had been stolen from Mr Everall's unit under the respondent's premises. Police also located in the camera a number of images of large quantities of cash on a kitchen bench, along with a short video showing people holding the cash.Count 3 In October 2008, Malee Kityanyong, aged 43, was an employee at 101 Thai House Restaurant. She lived at a residence situated at the rear of the restaurant. On the evening of Friday, 10 October 2008, another employee, Jenny Kityanyong had placed the day's takings and receipts from the cash till inside a pocket of her apron. That apron was then left on the bed of the residence. The restaurant and residence were then both secured. Marley Kityanyong retired to bed in the residence at about 1:00 am on Saturday, 11 October 2008. At about 2:00 am that same morning, the respondent and a number of other males forced their way into the residence by kicking in the rear timber door. They went to the bedroom where Ms Kityanyong was sleeping, pushed her to the ground, and forced her to kneel with her head pushed into a lounge. She had difficulty breathing and feared for her life. The intruders asked, "Where's the money, where's the purse?" Ms Kityanyong felt what she believed was a knife being pressed against her throat. She responded that she had no money, but took a box of coins from under the lounge and gave it to the offenders. The male who had been holding her head against the lounge released his grip and said, "Don't call the police in ten minutes. If you do call we'll kill you". The offenders then ran out the back door.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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