1 SPIGELMAN CJ: I invite Sully J to deliver the first judgment. 2 SULLY J: This is an application by Danielle Colgan for leave to appeal against sentences imposed upon her in the District Court at Newcastle by Mitchelmore DCJ on 1 March of this year. 3 The applicant had pleaded guilty in the District Court to two charges, one of armed robbery and the other of attempted armed robbery in company. She had asked the sentencing Judge to take into account, as well, four other associated matters none of which was comparable in seriousness to the two principal matters to which she pleaded guilty. 4 The learned sentencing Judge imposed upon the armed robbery count a sentence of penal servitude for two years, with a minimum term of one year, commencing on 19 February last and expiring on 18 February 2000, and an additional term of one year commencing 18 February 2000. On the second principal matter, that is to say the attempted armed robbery in company, his Honour imposed a concurrent fixed term of penal servitude for one year. 5 It might be noted that the offence of armed robbery, and the offence of attempted armed robbery in company, are both offences attracting, on conviction, a maximum sentence of penal servitude for 20 years. 6 The relevant objective facts may be taken conveniently, and as follows from the relevant Police Facts Sheet:
“Just after midnight on Wednesday 23 September, 1998 the defendant saw a friend of hers named Crystal in a Green Ford Fairlane Sedan registered number OCM939 in Mann Street, Gosford. The defendant asked her friend if the car was stolen after noticing a piece of wire hanging from the ignition, and the friend told her that the car was stolen. The defendant got into the car and the two drove to the Wyong area where they picked up two male friends. The four then went to the Road Pantry Service Station on the Pacific Highway at Lisarow where they put on balaclavas and gloves and the defendant and two others got out of the vehicle. They attempted to gain entry to the service station via the front door which had been locked by the attendant. They were unable to gain entry and so one of the…
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 Colgan
Sign in free to access the full text
Details
AGLC
R v Colgan [1999] NSWCCA 292
Case
[1999] NSWCCA 292
Decision Date
CaseChat Overview and Summary
Danielle Colgan applied for leave to appeal against sentences imposed by Mitchelmore DCJ in the District Court at Newcastle. The applicant had pleaded guilty to armed robbery and attempted armed robbery in company. The sentencing Judge imposed a sentence of penal servitude for two years for armed robbery, with a minimum term of one year, and a concurrent fixed term of one year for the attempted armed robbery in company. The applicant sought leave to appeal on the grounds that the imposition of a sentence of full-time custody was appellably severe given the compelling features of her subjective case, and that there was a parity issue with a co-offender who was sentenced in the Children's Court. The Court found that the learned sentencing Judge had given proper weight to the objective gravity of the offences and the subjective circumstances of the applicant's case. The Court held that there was no error in the sentence imposed on the applicant. The Court granted leave to appeal but dismissed the appeal.