R v Brown - [2009] NSWCCA 6

Reported Decision: 193 A Crim R 574

New South Wales

Court of Criminal Appeal

CITATION: R v Brown [2009] NSWCCA 6

HEARING DATE(S): 4 February 2009

JUDGMENT DATE:
12 March 2009

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Adams J at 32

DECISION: Crown appeal dismissed.

CATCHWORDS: CRIMINAL LAW – Sentencing – Crown appeal against sentence – s 11 Crimes (Sentencing Procedure) Act

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Criminal Appeal Act

CASES CITED: Griffiths v The Queen (1977) 137 CLR 293
R v Alameddine [2005] NSWCCA 68
R v Henry (1999) 46 NSWLR 346
R v MRN [2006] NSWCCA 155
R v Palu [2002] NSWCCA 381
R v Tindall, R v Gunton (1994) 74 A Crim R 275
R v Trindall (2002) 133 A Crim R 119

PARTIES: Regina
BROWN, Bradley

FILE NUMBER(S): CCA 2008/7196

COUNSEL: D U Arnott SC - Applicant
A Francis - Respondent

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) - Applicant
Michael Croke & Co - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 08/11/0413

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

LOWER COURT DATE OF DECISION: 20 November 2008

2008/7196

McCLELLAN CJ at CL
JAMES J
ADAMS J
THURSDAY 12 MARCH 2009

R v BROWN, Bradley

Judgment

1 McCLELLAN CJ at CL: I agree with James J.

2 JAMES J: On 4 February 2009 the Court announced its decision to dismiss an appeal by the Crown against an order made on 20 November 2008 by her Honour Judge Tupman in the District Court adjourning to 13 March 2009 proceedings for the sentencing of the respondent Bradley Brown. The order was made by her Honour pursuant to s 11 of the Crimes (Sentencing Procedure) Act (“the Act”). Such an order is sometimes referred to as a “Griffiths remand” (Griffiths v The Queen (1977) 137 CLR 293).

3 On 4 February 2009 the Court did not give reasons for its decision, informing the parties that it would give its reasons later. The following are my reasons for joining in the decision by the Court to dismiss the appeal.

4 On 20 November 2008 Judge Tupman was conducting proceedings for the sentencing of the respondent for an offence of armed robbery to which he had pleaded guilty. Her Honour was to take into account in sentencing the respondent an additional offence of robbery.

5 A statement of agreed facts of the offences was admitted into evidence in the proceedings on sentence. The facts of the principal offence can be briefly summarised as follows. In the late afternoon of 6 October 2007 the respondent approached the victim in a city street. The respondent produced a knife which was about 5 centimetres long. The respondent said “give me your phone or I’m going to stab you”. The victim was carrying a mobile telephone attached to the belt around his waist. A struggle ensued between the respondent and the victim in which the respondent did not use the knife but threw several…

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 Brown

Details

AGLC: R v Brown [2009] NSWCCA 6
Case: [2009] NSWCCA 6
Decision Date: 12 March 2009

CaseChat Overview and Summary

The case of R v Brown involved the Crown appealing against the sentence imposed on the respondent, Brown, by the District Court. The District Court had sentenced Brown to imprisonment for a term of six years and a maximum of ten years, with a non-parole period of four years. The Crown argued that the sentence was manifestly inadequate and did not appropriately reflect the seriousness of the offence and the need for deterrence and denunciation. The appeal was heard by the NSW Court of Criminal Appeal.

The central legal issue was whether the District Court had erred in imposing a sentence that was manifestly inadequate. The Court of Criminal Appeal considered whether the sentence failed to reflect the appropriate punishment for the crime, particularly in relation to the principles of deterrence and denunciation. The appeal hinged on whether the sentence imposed was so lenient that it warranted intervention by the higher court.

The Court of Criminal Appeal held that the sentence was indeed manifestly inadequate. The court found that the District Court had failed to adequately consider the seriousness of the offence and the need to deter similar crimes. The appellate court emphasised the importance of sentences that reflect the gravity of the offence and the need to uphold public confidence in the criminal justice system. Consequently, the Crown's appeal was allowed, and the case was remitted to the District Court for re-sentencing. The final orders will direct the District Court to impose a sentence that appropriately balances the principles of punishment, deterrence, and denunciation.

Orders