R v Carr - [1999] NSWCCA 200

CITATION: R v Carr [1999] NSWCCA 200

FILE NUMBER(S): CCA 60733/98

HEARING DATE(S): 23 July 1999

JUDGMENT DATE:
23 July 1999

PARTIES :
Regina
Dale Charles Carr (Appellant)

JUDGMENT OF: Studdert J at 1; Simpson J at 39

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/61/0004; 98/61/0012

LOWER COURT JUDICIAL OFFICER: Armitage DCJ; Downs DCJ

COUNSEL: C.K. Maxwell QC (Crown)
A.C. Haesler (Appellant)

SOLICITORS: S.E. O'Connor (Crown)
T.A. Murphy (Appellant)

CATCHWORDS:

ACTS CITED: Crimes Act
Sentencing Act

CASES CITED:
R v Winchester (1991) 58 A Crim R 345 at 350
R v Fernando (1992) 76 A Crim R 58
Mill v The Queen (1988) 166 CLR 59
R v GDR (1994) 35 NSWLR 376
R v Simpson (1992) 61 A Crim R 58

DECISION: See para 38

IN THE COURT OF
CRIMINAL APPEAL
60733/98
60074/99

STUDDERT J
SIMPSON J
Friday 23 July 1999

REGINA v DALE CHARLES CARR
JUDGMENT
1   STUDDERT J: The applicant, Dale Charles Carr, seeks leave to appeal against sentences imposed upon him in the District Court by Judge Armitage and by Judge Downs QC.
2   On 13 October 1998 the applicant pleaded guilty before Judge Armitage to two offences charged on indictment:

(i) attempting to steal a motor vehicle;
(ii) assault occasioning actual bodily harm.

3   For those offences his Honour imposed a fixed term of imprisonment in relation to each matter commencing 30 December 1997 and expiring on the date of sentence, 13 October 1998.
4   On 16 November 1998 the applicant pleaded guilty to an offence of sexual intercourse without consent and Judge Downs imposed a sentence following conviction for that offence of four years, comprising a minimum term of three years and an additional term of one year. That sentence was fixed to commence on 14 October 1998, which of course followed immediately upon the expiration of the fixed term sentence imposed by Judge Armitage.
5   The offences that attracted the fixed term sentences were committed on 30 November 1993. On the evening of that day the applicant was one of several men who attempted to steal a motor vehicle which was parked near the swimming pool in Talbragar St, Dubbo. Entry to the car was forced and the offenders were in the process of endeavouring to start the vehicle when the owner arrived on the scene. A struggle ensued, punches were thrown and a rock was thrown at the car’s owner. The victim of the assault sustained injuries consisting of a laceration behind the right ear and grazing to his shoulder.
6   The applicant was arrested followed the commission of these two offences but was granted bail and he breached his bail and failed to appear for his trial. He was eventually apprehended on a bench warrant on 30 December 1997 and he remained in custody from that time until Judge Armitage sentenced him.
7   The expressed reason for having failed to appear was that he was fearful that one of the co-offenders involved in the attempted theft of…

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 [1999] NSWCCA 200
Case: [1999] NSWCCA 200
Decision Date: 23 July 1999

CaseChat Overview and Summary

The case of R v Carr involved an appeal by the applicant, Dale Charles Carr, against sentences imposed by two judges in the District Court. The first sentence was for attempting to steal a motor vehicle and assault occasioning actual bodily harm, while the second sentence was for sexual intercourse without consent. The applicant sought leave to appeal against the sentences on various grounds, including the severity of the penalties, the principle of parity, and the application of the principle of totality. The court was required to determine whether the sentences were appropriate, considering the principles of sentencing and the specific circumstances of the case.

The Court of Criminal Appeal examined the arguments presented by the applicant's counsel and the submissions made by the Crown. The court considered the principles of sentencing, including the principle of totality, which requires a review of the aggregate sentence to ensure it is just and appropriate. The court also looked at the principle of parity, which compares the sentences of co-offenders, and whether special circumstances existed to warrant a deviation from the standard ratio of minimum to additional terms. The court further assessed the submissions regarding the applicant's Aboriginality and alcohol abuse as mitigating factors.

The Court of Criminal Appeal concluded that the sentences imposed by the District Court were generally appropriate, except for the ratio of the minimum to additional terms in the second sentence. The court found that the principle of totality was correctly applied, and the aggregate sentences were within the range. However, the court deemed it necessary to adjust the ratio of the minimum and additional terms for the sexual offence to ensure an appropriate balance. The Court of Criminal Appeal granted leave to appeal and allowed the appeal against the second sentence, reducing the minimum term and increasing the additional term accordingly.

The final orders of the Court of Criminal Appeal were to grant leave to appeal against both sentences but dismiss the appeal against the first sentence. The appeal against the second sentence was allowed, and the sentence was quashed. In its place, the applicant was sentenced to a minimum term of two years and three months, with an additional term of one year and nine months. The court specified that the applicant would be eligible for release on parole from the first date of the additional term.

Orders