R v Colvin - [2024] NSWDC 281

District Court

New South Wales

Medium Neutral Citation: R v Colvin [2024] NSWDC 281
Hearing dates: 19 April 2024
Date of orders: 19 April 2024
Decision date: 19 April 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment of 3 years 3 months with a non-parole period of 2 years and 3 months

Catchwords:
CRIME — Violent offences — Use offensive weapon to prevent lawful detention — Resist/Hinder police officer in execution of duty — Use offensive weapon with intent to commit indictable offence — Assault occasioning actual bodily harm
SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Penalties — Imprisonment

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure Act) 1999 No 2 of 2002 [2002] NSWCCA 515
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
Engert v The Queen (1995) 84 A Crim R 67
Nasrallah v R [2021] NSWCCA 207
R v Colvin (No 1) [2021] NSWDC 309
R v Colvin (No 2) [2021] NSWDC 494
R v Nydegger [2023] NSWDC 619
R v Windle [2012] NSWCCA 222
Tepania v R [2018] NSWCCA 247

Category: Sentence
Parties: Jason Keith Colvin (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
A Booker (for the offender)
Solicitors:
Legal Aid (NSW) for the offender
N Verghese solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2023/74818; 2023/145900

JUDGMENT – ex tempore revised

Introduction

On 13 August 2021 I convicted and then sentenced Jason Colvin for offences committed against his sister in her home: R v Colvin (No1) [2021] NSWDC 390; R v Colvin (No 2) [2021] NSWDC 494. When I sentenced him, I took into account; his history of childhood deprivation, the fact that police had taken action against those who sexually abused him as a child, and his longstanding mental health and drug problems. I concluded by saying, at pars [40]-[41] :

“[He] must be removed from the community for a period so he can be adequately punished, but he will have to return to the community, and the longer he can be supervised on parole the safer the community will be.
His tragic background must be given full weight, but the sentence must also recognise the harm he did … and punish him for what he did … He is capable of learning. He is capable of change, but he will need help doing so. If he takes that help his life may improve. If he does not, he will return to gaol.”

Colvin was released to parole on 5 February 2023. On 6 March 2023, a month later, he committed a number of serious…

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 Colvin

Details

AGLC: R v Colvin [2024] NSWDC 281
Case: [2024] NSWDC 281
Decision Date: 19 April 2024

CaseChat Overview and Summary

The case of R v Colvin involved the respondent, Colvin, who was facing multiple charges relating to violent offences and resisting police. Colvin had used an offensive weapon to prevent lawful detention and resisted a police officer while executing their duty. He was also charged with using an offensive weapon with intent to commit an indictable offence, as well as assaulting a person occasioning actual bodily harm. The case was heard in the higher court, which had to decide on the appropriate legal issues surrounding these charges, including the aggravating and mitigating factors to be considered in sentencing.

The court needed to determine the applicability of various statutory provisions and consider the guidelines for sentencing. Specifically, it had to evaluate whether Colvin's breach of conditional liberty and his record of previous convictions constituted aggravating factors. The court also had to consider the role of sentencing guidelines in determining an appropriate penalty. Furthermore, the court needed to weigh the mitigating factor of Colvin's plea of guilty against the severity of his offences. The court needed to balance these factors to arrive at an appropriate sentence.

In delivering the judgment, the court held that Colvin's actions warranted a severe penalty due to the seriousness of the offences. The court found that the aggravating factors, including the breach of conditional liberty and Colvin's criminal history, outweighed the mitigating factor of his guilty plea. The court also considered the role of sentencing guidelines in arriving at an appropriate penalty, taking into account the need to deter Colvin and others from committing similar offences. Ultimately, the court sentenced Colvin to an aggregate term of imprisonment of 3 years and 3 months, with a non-parole period of 2 years and 3 months. This decision reflects the court's commitment to ensuring that justice is served and that appropriate penalties are imposed for serious criminal conduct.

Orders

Orders of the court

Aggregate sentence of imprisonment of 3 years 3 months with a non-parole period of 2 years and 3 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Colvin [2024] NSWDC 281
Hearing dates:	19 April 2024
Date of orders:	19 April 2024
Decision date:	19 April 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 3 years 3 months with a non-parole period of 2 years and 3 months
Catchwords:	CRIME — Violent offences — Use offensive weapon to prevent lawful detention — Resist/Hinder police officer in execution of duty — Use offensive weapon with intent to commit indictable offence — Assault occasioning actual bodily harm SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Act1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure Act) 1999 No 2 of 2002 [2002] NSWCCA 515 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. Engert v The Queen (1995) 84 A Crim R 67 Nasrallah v R [2021] NSWCCA 207 R v Colvin (No 1) [2021] NSWDC 309 R v Colvin (No 2) [2021] NSWDC 494 R v Nydegger [2023] NSWDC 619 R v Windle [2012] NSWCCA 222 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Jason Keith Colvin (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: A Booker (for the offender) Solicitors: Legal Aid (NSW) for the offender N Verghese solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2023/74818; 2023/145900