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R v Bottin

R v Bottin

Case [2005] NSWCCA 254 25 July 2005

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CITATION:
R v Bottin [2005] NSWCCA 254

HEARING DATE(S): 14 July 2005

JUDGMENT DATE:

25 July 2005

JUDGMENT OF:
Studdert J at 1; Kirby J at 39; Howie J at 40

DECISION:
Leave to appeal granted; appeal dismissed.

LEGISLATION CITED:

Crimes Act, ss 33B, 97(1), 111(3)
Criminal Appeal Act, ss 6(3), 7(1A)
Criminal Appeal Rules, r 3A
Firearms Act, s 7

CASES CITED:
R v Carr (2002) 135 A Crim R 171
R v Henry (1999) 46 NSWLR 346
R v Shankley [2003] NSWCCA 253

PARTIES:
Regina v Craig William Bottin

FILE NUMBER(S):
CCA 2005/615

COUNSEL:
G. Rowling (Crown)
T. Golding (Appellant)

SOLICITORS:
S. Kavanagh (Crown)
S.E. O'Connor (Appellant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
02/11/0686

LOWER COURT JUDICIAL OFFICER:
Kinchington DCJ

2005/615

STUDDERT J
KIRBY J
HOWIE J
Monday 25 July 2005

REGINA v CRAIG WILLIAM BOTTIN

Judgment

1 STUDDERT J: The applicant, Craig William Bottin, seeks leave to appeal against sentences imposed on him in the District Court on 15 April 2003.

2 At the hearing of this matter, the applicant sought, and was granted, leave to extend the period during which the notice of intention to apply for leave to appeal was to have effect, upon grounds expressed in the extension application, supported by the affidavits of the applicant affirmed on 11 July 2005 and of his solicitor, Catherine Ridge, also affirmed on 11 July 2005. Those affidavits afford an explanation for the failure to comply with r 3A of the Criminal Appeal Rules. Pursuit of the appeal was dependent upon a grant of legal aid but there was a breakdown in communications between the applicant’s former solicitors and the Grants Division. Then a fresh notice of intention to appeal was filed but rejected by the registrar, and further time was lost. The affidavits evidence that at no time did the applicant wish to abandon the opportunity to appeal, and in the circumstances it was appropriate to extend time.

3 In November 2002 the applicant stood trial charged with an offence of armed robbery. He was convicted of that offence. Then, following conviction for the armed robbery offence, the applicant pleaded guilty to a group of offences being:

(i) specifically aggravated enter with intent to commit a serious indictable offence;

(ii) attempt to use an offensive weapon with intent to prevent lawful apprehension;

4 The following maximum penalties exist for the various categories of offences committed by the applicant:

(a) for the armed robbery, a maximum penalty of twenty years imprisonment: s 97(1) of the Crimes Act ;

(b) for the specially aggravated enter with intent, twenty years imprisonment: s 111(3) of the Crimes Act ;

(c) for attempting to use an offensive weapon with intent to prevent lawful apprehension, twelve years imprisonment: s 33B of the Crimes Act ;

Firearms Act

5 The sentencing judge…

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 Bottin

Details

AGLC: R v Bottin [2005] NSWCCA 254
Case: [2005] NSWCCA 254
Decision Date: 25 July 2005

CaseChat Overview and Summary

The case of Regina v Craig William Bottin involved an appeal against the sentences imposed on the applicant by the District Court. Bottin sought leave to appeal on several grounds, including the failure to properly consider his serious psychiatric condition, the excessiveness of the sentences, a misstatement of the maximum penalty for the offence, and the wrongful consideration of a criminal history from Tasmania. The applicant was convicted of armed robbery and other related offences, and the District Court imposed concurrent sentences for the offences to which he pleaded guilty, with the armed robbery sentence partially cumulative to the others. The Court of Criminal Appeal considered the grounds of appeal and found that while the sentencing judge did misstate the maximum penalty for the offence, this error did not warrant interference with the sentences imposed. The Court found that the sentences, when considered in their entirety, were appropriate punishment for the offences committed, and accordingly granted leave to appeal but dismissed the appeal. The judges noted that the sentences imposed were within the discretionary range available to the sentencing judge and that the applicant's mental health was considered in the sentencing process.

Orders