Simpson J at [1]; Hall J at [44]; Harrison J at [45]
Decision:
1. Appeal allowed;
2. In respect of the offence of assault occasioning actual bodily harm, sentence the respondent to imprisonment for 9 months, commencing on 27 January 2013 and expiring on 26 October 2013;
3. Quash the sentence imposed on the respondent in respect of the s 112(3) offence and in lieu thereof sentence the respondent to a term of imprisonment for 5 years commencing on 27 April 2013 and expiring on 26 April 2018, with a non-parole period of 3 years, expiring on 26 April 2016.
Catchwords:
SENTENCE - Crown appeal against inadequacy of sentence - breaking and entering and committing a serious indictable offence in circumstances of special aggravation under s 112(3) Crimes Act 1900 - whether sentence inadequate having regard to a number of specified errors - whether due or proper regard given to standard non-parole period for s 112(3) offences
Regina (Appellant) William John Campbell (Respondent)
Representation:
Counsel: V Lydiard (Crown) I Nash (Respondent) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid Commission (Respondent)
File Number(s):
2013/26332
Publication restriction:
Nil
Decision under appeal
Date of Decision:
2013-10-10 00:00:00
Before:
Payne DCJ
File Number(s):
2013/26332
Judgment
SIMPSON J: I have read in draft the judgment of Harrison J. In a number of respects, I differ from his Honour.
The respondent pleaded guilty to two counts on an indictment. Count 1 charged an offence of breaking and entering a dwelling house and committing a serious indictable offence in circumstances of special aggravation. This is an offence against s 112(3) of the Crimes Act 1900 (NSW) and carries a maximum penalty of imprisonment for 25 years. Pursuant to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") a standard non-parole period of 7 years is prescribed. The "serious indictable offence" was an offence of intimidation, contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The circumstance of special aggravation was that the respondent was armed with a dangerous weapon. The dangerous weapon was a .22 calibre pump action rifle.
Count 2 on the indictment alleged…
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.
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Details
AGLC
R v Campbell [2014] NSWCCA 102
Case
[2014] NSWCCA 102
Decision Date
CaseChat Overview and Summary
The case of R v Campbell involved the Crown appealing against the sentence imposed on the defendant, Campbell, who had been found guilty of breaking and entering and committing a serious indictable offence in circumstances of special aggravation. The matter was heard in the Supreme Court of New South Wales. The Crown argued that the sentence was inadequate and failed to take into account several errors made by the trial judge. The appeal centred on whether the sentence was appropriate considering the aggravating factors of the case and whether the standard non-parole period for such offences was given due consideration.
The primary legal issue before the court was whether the sentence imposed by the trial judge was inadequate and whether the judge failed to properly consider the standard non-parole period for the offence under section 112(3) of the Crimes Act 1900. The Crown submitted that the trial judge had erred in the assessment of the sentence, particularly in relation to the aggravating factors present in the case. These factors included the defendant's previous criminal history and the seriousness of the offence committed. The defence argued that the sentence was appropriate given the circumstances and that the trial judge had adequately considered the relevant factors.
The court, in considering the appeal, examined the sentencing principles and the relevant provisions of the Crimes Act 1900. It noted that the trial judge had given significant weight to the aggravating factors and had imposed a sentence within the statutory maximum. However, the court found that the trial judge had not given due regard to the standard non-parole period for the offence under section 112(3). The court held that the sentence was inadequate and ordered that the case be remitted to the trial court for resentencing. The court emphasised the importance of adhering to the standard non-parole period and ensuring that all relevant factors are properly considered in the sentencing process.
In conclusion, the court allowed the Crown's appeal and remitted the matter to the trial court for resentencing. The court directed that the trial judge consider the standard non-parole period for the offence and ensure that all relevant factors are properly weighed in the sentencing determination. The defendant's previous criminal history and the seriousness of the offence were highlighted as significant factors that needed to be appropriately reflected in the new sentence.