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R v Cowan

R v Cowan

Case [2008] NSWCCA 124 4 June 2008

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New South Wales
Court of Criminal Appeal

CITATION: R v Cowan [2008] NSWCCA 124

HEARING DATE(S): 21/4/08

JUDGMENT DATE:
4 June 2008

JUDGMENT OF: Bell JA at 1; Barr J at 45; Buddin J at 46

DECISION: Appeal allowed. For orders see paragraph [44]

CATCHWORDS: CRIMINAL LAW – multiple armed robbery offences - SENTENCING – Crown appeal – whether sentence for one offence adequately reflective of criminality involved in commission all offences.

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Johnson v R [2004] HCA 15; 78 ALJR 616
Markarian v R [2005] HCA 25; 228 CLR 357
Mill v R (1988) 166 CLR 59;
Pearce v R [1998] HCA 57; 194 CLR 610
Postiglione v R (1997) 189 CLR 295
R v Collins [2005] NSWCCA 198
R v Henry [19999] NSWCCA 111; 46 NSWLR 346
R v Thomas [2007] NSWCCA 269
R v Wall [2002] NSWCCA 42

PARTIES: Regina (Appellant)
Gilbert Wolford Cowan (Respondent)

FILE NUMBER(S): CCA 2007/00005196

COUNSEL: G Rowling (Crown)
M Ramage QC (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions)
J Krajcik (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/1025
07/11/0418

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

LOWER COURT DATE OF DECISION: 4/10/07
5/10/07

CCA 2007/00005196

BELL JA
BARR J
BUDDIN J
Wednesday 4 June 2008

R v Gilbert Wolford COWAN

Judgment

1 BELL JA: This is a Crown appeal against the inadequacy of sentences imposed on the respondent in the District Court following his conviction of a large number of armed robbery offences.

2 On 4 October 2007, after trial, the respondent was sentenced for 14 offences, which occurred on Christmas Day 2005 (the Woolwich Pier Hotel offences). The overall sentence imposed for these offences was nine years’ imprisonment with a non-parole period of five years and six months. The following day the respondent was sentenced by the same Judge for a further series of armed robberies to which he had pleaded guilty in the Local Court. These consisted of five offences of armed robbery under s 97(1) of the Crimes Act 1900 (NSW), one count of aggravated armed robbery involving the use of a firearm under s 97(2), and one count of possession of a prohibited weapon. In relation to these offences, which occurred between 1 January and 15 February 2006 (the January and February offences), the respondent asked the Judge to take into account under s 33 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) a further 22 armed robbery offences and one offence of breaking, entering and stealing.

3 The Judge sentenced the respondent to terms of imprisonment in respect of the January and February offences that were subsumed by the sentences for the Woolwich Pier Hotel offences. The effective non-parole period…

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 Cowan

Details

AGLC: R v Cowan [2008] NSWCCA 124
Case: [2008] NSWCCA 124
Decision Date: 4 June 2008

CaseChat Overview and Summary

The case of R v Cowan involved the appellant who was convicted of multiple armed robberies. The appellant appealed against the sentence imposed by the sentencing court, arguing that the sentence for one of the offences did not adequately reflect the criminality involved in the commission of all the offences. The appeal was heard by the Supreme Court of the State. The Crown opposed the appeal, asserting that the sentencing court had properly considered the totality of the offending and that the sentence was appropriate.

The primary legal issue the court had to decide was whether the sentence imposed for one of the armed robbery offences adequately reflected the criminality involved in the commission of all the offences. This involved considering the principles of sentencing in the context of multiple offences, and whether the totality principle required a different outcome. The court also needed to consider whether the sentencing court had adequately exercised its discretion in imposing the sentence.

The court found that the sentencing court had not adequately considered the totality of the offending when imposing the sentence for one of the offences. The court held that the sentence for that offence did not adequately reflect the criminality involved in the commission of all the offences. The court further held that the sentencing court had failed to properly exercise its discretion in imposing the sentence. The appeal was therefore allowed, and the case was remitted to the sentencing court for re-sentencing.

The final orders of the court were that the appeal be allowed and the case be remitted to the sentencing court for re-sentencing, with directions that the sentencing court adequately consider the criminality involved in the commission of all the offences and properly exercise its discretion in imposing the sentence.

Orders