R v Bobak - [2005] NSWCCA 320

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Bobak [2005] NSWCCA 320

FILE NUMBER(S):
2005/866

HEARING DATE(S): 6 September 2005

JUDGMENT DATE: 06/09/2005

PARTIES:
Regina v Trevor Mark Bobak

JUDGMENT OF: McClellan CJatCL Grove J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1175

LOWER COURT JUDICIAL OFFICER: Keleman DCJ

COUNSEL:
J. Bennett SC (Crown)
P. Hamill SC (Appellant)

SOLICITORS:
S. Kavanagh (DPP)
S. O'Connor (Appellant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SENTENCE
MALICIOUS INFLICTION OF GRIEVOUS BODILY HARM WITH INTENT
HORRIFIC INJURIES AND PERMANENT DISABILITY OF VICTIM
OFFENDER ONE OF TWO ENGAGED IN JOINT COMMISSION OF CRIME
OFFENDER THE ACTUAL PERPETRATOR OF MOST SERIOUS ASSAULT
PRIOR RECORD
NO JUSTIFIABLE GRIEVANCE ARISING FROM LESSER SENTENCE RECEIVED BY CO-OFFENDER
SENTENCE AT TOP OF RANGE WARRANTED

LEGISLATION CITED:

DECISION:
APPEAL DISMISSED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/866
McCLELLAN CJ at CL
GROVE J
SMART AJ
6 September 2005

REGINA v TREVOR MARK BOBAK

Judgment

GROVE J: The applicant/appellant seeks leave to appeal against severity of sentence imposed upon him by Keleman DCJ in Sydney District Court. The appellant and a co-offender (Paul Matthew Kirkland) were scheduled to appear for trial, however, in discharge of indictment, the Crown accepted pleas of guilty by both offenders to counts of maliciously inflicting grievous bodily harm upon Richard Boyd Law with intent to do so and aggravated breaking and entering of Mr Law’s dwelling and the stealing of a stereo system therefrom. On the firstmentioned count the appellant was sentenced to imprisonment for sixteen years with a non-parole period of twelve years and on the other count to imprisonment for a fixed term of two years and nine months. The shorter term is now expired and the present application relates to the longer sentence. On the identical charges, Kirkland was sentenced to imprisonment for twelve years with a non-parole period of eight years and a fixed term of two years.
The first ground of appeal, which complains of disparity between the sentence received by the appellant and that received by Kirkland makes it appropriate to sketch facts relating to the activity of both offenders.
The appellant, Kirkland and the victim Law were acquainted with each other. On Thursday 5 September 2002 the appellant and Kirkland were at the former’s flat where they consumed a large amount of alcohol. The appellant suspected that Mr Law was in possession of a bracelet belonging to the appellant’s daughter. The offenders set out to retrieve this item. Upon arrival at Mr Law’s flat, no one appeared to be home and the appellant, at Kirkland’s urging, kicked the door open. They did not obtain the bracelet but stole a stereo system and a speaker. These items were later retrieved from another person who had taken them into his custody with the intention of returning them to the owner. The taking of these items represented the offence for which the offenders received the shorter sentence.
They returned to the appellant’s unit. A somewhat unconventional handgun…

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 Bobak

Details

AGLC: R v Bobak [2005] NSWCCA 320
Case: [2005] NSWCCA 320
Decision Date: 6 September 2005

CaseChat Overview and Summary

In the case of R v Bobak, the appellant stood trial for his involvement in the malicious infliction of grievous bodily harm against a victim, resulting in significant injuries and permanent disability. The appellant was one of two individuals engaged in the joint commission of this crime, but he was identified as the actual perpetrator of the most severe assault. The appellant's prior criminal record was also a matter of consideration during sentencing. The High Court was tasked with determining the appropriate sentence for the appellant, taking into account the severity of the crime and the circumstances surrounding the commission of the offence.

The legal issues before the court included the assessment of the appropriate range of sentencing for the appellant, given the gravity of the crime and the appellant's role in the joint commission of the offence. The court also needed to consider whether the appellant had any justifiable grievance arising from the lesser sentence received by his co-offender. Furthermore, the court had to weigh the appellant's prior criminal record against the need for general deterrence and denunciation of such heinous crimes.

In delivering the judgment, the court emphasised the severity of the crime and the resulting harm to the victim. The court held that the appellant's role as the actual perpetrator of the most serious assault warranted a sentence at the top of the range. The court also dismissed the appellant's claim of a justifiable grievance regarding the lesser sentence received by his co-offender, as it found no evidence to support such a claim. The court ultimately concluded that a sentence at the top of the range was appropriate to achieve the aims of punishment, including general deterrence and denunciation of the crime.

The final orders of the court were to confirm the sentence imposed by the lower court, which was deemed appropriate in light of the severity of the crime and the appellant's role in the joint commission of the offence. The court's decision underscored the importance of considering the gravity of the crime, the role of the offender, and the need for general deterrence and denunciation when determining an appropriate sentence in cases of malicious infliction of grievous bodily harm.

Orders