R v Carr - [2022] NSWDC 633

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v CARR [2022] NSWDC 633
Hearing dates: 2 December 2022
Date of orders: 2 December 2022
Decision date: 15 December 2022
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Aggregate sentence of imprisonment - see [79]-[84]

Catchwords:
CRIME - multiple property offences - aggravated break enter and steal - steal motor vehicle - damage to property
CRIME - violent offences - armed robbery - delivery driver threatened with knife - forced to drive to ATM to withdraw cash
EVIDENCE - course of evidence - maker not available
SENTENCING - on conditional liberty at the time of offending - Bugmy factors - chronic substance abuse

Legislation Cited:
Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1999
Evidence Act 1995

Cases Cited:
Bugmy v The Queen [2013] HCA 37
Di Simoni v The Queen [1981] HCA 31; 147 CLR 383
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
Elyard v R [2006] NSWCCA 43
Hunter v R [2011] NSWCCA 144
R v Henry & Ors (1999) 46 NSWLR 346
R v Naderi [2022] NSWDC 534
Sio v R [2015] NSWCCA 42
Sio v The Queen [2016] HCA 32

Category: Sentence
Parties: Rex
Michael William CARR
Representation:
Counsel:
Mr T Bailey for the Crown
Mr R Keller for the offender
Solicitors:
Mr E Lloyd, Office of the Director of Public Prosecutions
Mr D Barron, Barron Law

File Number(s): 2020/150597, 2020/227191
Publication restriction: No

REMARKS ON SENTENcE

The offender appears for sentence in respect of a multiplicity of very serious offending. On one set of papers is a single charge of Aggravated Break Enter and Commit Serious Indictable Offence contrary to s 112(2) of the Crimes Act, 1900. A plea of guilty was entered in the Local Court on 19 May 2021 and that plea was adhered to at the sentence hearing at the Wagga Wagga District Court on 2 December 2022. The offender is therefore entitled to the full 25% discount utilitarian value of the plea of guilty on that matter.
In respect of the other set of papers there is a total of eight matters on an indictment. In respect of those matters the offender was committed for trial from the Wagga Wagga local Court on 5 May 2021. Pleas of guilty were entered on 21 July 2022 following a ruling I made as to the admissibility of evidence. I will return to this aspect later in these remarks.
The matters in the order in which they appear on the indictment are as follows:

Aggravated Break Enter and Commit Serious Indictable Offence (Larceny), contrary to s 112(2) of the Crimes Act, 1900;

Break Enter and Steal contrary to s 112(1) of the Crimes Act;

Steal Motor Vehicle contrary to s 154F of the Crimes Act;

Armed Robbery contrary to s.97 of the Crimes Act;

Aggravated Break and Enter and Commit Serious Indictable Offence (Damage to Property), where the aggravation is deprivation of liberty, contrary…

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 Carr

Details

AGLC: R v Carr [2022] NSWDC 633
Case: [2022] NSWDC 633
Decision Date: 15 December 2022

CaseChat Overview and Summary

The case of R v Carr was heard in a court of law, where the defendant was charged with multiple property offences, including aggravated break enter and steal, as well as stealing a motor vehicle and causing damage to property. Additionally, the defendant was charged with violent offences, specifically armed robbery, where a delivery driver was threatened with a knife and forced to drive to an ATM to withdraw cash. The defendant was on conditional liberty at the time of offending, and chronic substance abuse was noted as a relevant factor in sentencing.

The legal issues before the court included whether the offences were part of a course of evidence, despite the unavailability of the maker, and whether the defendant's substance abuse and conditional liberty at the time of offending warranted a reduced sentence. The court had to consider these factors in light of the Bugmy principles and determine an appropriate aggregate sentence of imprisonment.

In delivering the judgment, the court noted that the offences were part of a course of evidence, despite the unavailability of the maker. The court found that the defendant's chronic substance abuse and conditional liberty at the time of offending were relevant factors in sentencing. However, the gravity of the offences, including the armed robbery and the impact on the victim, weighed heavily in favour of a custodial sentence. The court ultimately determined an aggregate sentence of imprisonment, taking into account the Bugmy factors and the specific circumstances of the case.

The final orders of the court were to impose an aggregate sentence of imprisonment, with the details outlined in paragraphs [79] to [84] of the judgment. The court considered the totality of the offences and the defendant's background, ultimately deciding on a sentence that balanced the need for punishment, deterrence, and rehabilitation.

Orders

Orders of the court

Aggregate sentence of imprisonment - see [79]-[84]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v CARR [2022] NSWDC 633
Hearing dates:	2 December 2022
Date of orders:	2 December 2022
Decision date:	15 December 2022
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Aggregate sentence of imprisonment - see [79]-[84]
Catchwords:	CRIME - multiple property offences - aggravated break enter and steal - steal motor vehicle - damage to property CRIME - violent offences - armed robbery - delivery driver threatened with knife - forced to drive to ATM to withdraw cash EVIDENCE - course of evidence - maker not available SENTENCING - on conditional liberty at the time of offending - Bugmy factors - chronic substance abuse
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999 Evidence Act 1995
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Di Simoni v The Queen [1981] HCA 31; 147 CLR 383 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Elyard v R [2006] NSWCCA 43 Hunter v R [2011] NSWCCA 144 R v Henry & Ors (1999) 46 NSWLR 346 R v Naderi [2022] NSWDC 534 Sio v R [2015] NSWCCA 42 Sio v The Queen [2016] HCA 32
Category:	Sentence
Parties:	Rex Michael William CARR
Representation:	Counsel: Mr T Bailey for the Crown Mr R Keller for the offender Solicitors: Mr E Lloyd, Office of the Director of Public Prosecutions Mr D Barron, Barron Law
File Number(s):	2020/150597, 2020/227191
Publication restriction:	No