R v Brown - [2000] NSWCCA 423

CITATION: R v BROWN [2000] NSWCCA 423

FILE NUMBER(S): CCA 60615 of 1999

HEARING DATE(S): 13 October 2000

JUDGMENT DATE:
13 October 2000

PARTIES :

Regina
George William Brown

JUDGMENT OF: Hulme J at 1; Barr J at 19

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0203

LOWER COURT JUDICIAL
OFFICER : Coolahan

COUNSEL : Crown: PG Berman
Appellant: CB Craigie

SOLICITORS: Crown: SE O'Connor
Appellant DJ Humphreys

DECISION: See paragraph 18

- 8 -

IN THE COURT OF
CRIMINAL APPEAL
No: 60615/99

HULME J
BARR J

Friday, 13 October 2000

REGINA -v Charles William BROWN

JUDGMENT

1 HULME J: On 30 September 1999 this Applicant for leave to appeal was sentenced to imprisonment for a minimum term of 8 years from that date and an additional term of two years with respect to a charge of robbery whilst armed with a dangerous weapon and in company. Pursuant to s 97(2) of the Crimes Act, his actions rendered him liable for penal servitude as it then was for twenty-five years.
2    The circumstances of the offence were that the Applicant and a co-offender entered a truck repair workshop at Cardiff wherein the business of Mr Max Chalmers was conducted. Both offenders were disguised with balaclavas, the co-offender was armed with a baseball bat and the Applicant, wearing gloves, was carrying a shortened 2.2 calibre rifle and a pocket knife. Present in addition to Mr Chalmers was his wife, her sister, two other men and some children. The group was rounded up by the Applicant and directed into the lunch room. Demand was made that Mr Chalmers identify himself and when he did so he was ordered to open drawers and "get the cash". The Applicant became agitated as a result of which a safe was opened and some $300 taken. Mr Chalmers was struck by the Applicant with his hand and by the co-offender with a baseball bat. His Honour accepted that during these activities the gun was pointed at Mr Chalmers and others and that the gun was loaded.
3    The grounds of appeal are:

Grounds 1, 2 and 3.

4    The foundations of these grounds lies in a report from Miss Robilliard, a psychologist, to the effect that the Applicant is intellectually limited in his ability to negotiate the ordinary demands of every day living, functioning at around the bottom 1% of the population. According to Miss Robilliard he exhibits schizoid and anti-social behaviours and lacks the ability and social understanding needed to cope with a difficult moral dilemma. He was likely to behave in an impetuous manner and pay little heed to the consequences of his actions.
5    The dilemma to which Miss Robilliard was referring arose because of a claim by the Applicant that his former de facto wife and a young girl whom he had recently befriended had become addicted to drugs and the Applicant believed Mr Chalmers to be a drug dealer. It would seem there were some grounds for that…

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 [2000] NSWCCA 423
Case: [2000] NSWCCA 423
Decision Date: 13 October 2000

CaseChat Overview and Summary

In the case of R v Brown, the appellant, Charles William Brown, was convicted of robbery while armed with a dangerous weapon and in company. He was sentenced to imprisonment for a minimum term of 8 years and an additional term of two years. Brown sought leave to appeal against his sentence on the grounds that the sentencing judge failed to adequately consider his intellectual limitations and the impact of these limitations on his culpability and the appropriate sentence. The appeal was heard by Hulme J and Barr J of the New South Wales Court of Criminal Appeal.

The central legal issues in the appeal were whether the sentencing judge erred in not finding that Brown's attendance at the premises was primarily for the purpose of giving Mr Chalmers a hiding, and whether the sentence imposed was manifestly excessive. The appeal also questioned whether the sentencing judge appropriately considered Brown's intellectual limitations and the appropriate weight to give to deterrence in the sentencing process.

The Court of Criminal Appeal found that while the sentencing judge did consider Brown's intellectual limitations, he did not err in not finding that Brown's attendance at the premises was primarily for the purpose of giving Mr Chalmers a hiding. The Court held that the sentencing judge was entitled to find that Brown understood the difference between right and wrong and could perceive the consequences of his actions. However, the Court found that the sentence imposed was manifestly excessive. The Court noted that the total period of incarceration, including the prior period of incarceration and the sentence for breach of parole, was lengthy. The Court concluded that a minimum term of 8 years, following so closely after a previous four and a half years of incarceration, was crushing and manifestly excessive. The Court also found that the additional term of two years was excessive, and that a period of greater than two years should not have been imposed.

The Court granted leave to appeal against sentence, quashed the sentence imposed, and sentenced Brown to imprisonment for a period of eight years from 30 September 1999, with a direction that 5 years be served before Brown becomes eligible for parole.

Orders