R v Cross - [2002] NSWCCA 172

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Cross [2002] NSWCCA 172

FILE NUMBER(S):
60926/01

HEARING DATE(S): 13/5/02

JUDGMENT DATE: 15/05/2002

PARTIES:
Regina v Edward Morgan Cross

JUDGMENT OF: O'Keefe J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Coorey DCJ

COUNSEL:
Mr P G Berman SC - Applicant
Mr G I O Rowling - Respondent

SOLICITORS:
D J Humphreys, Sydney - Applicant
S E O'Connor, DPP - Respondent

CATCHWORDS:
Criminal law
Appeal
Leave to appeal
Extension of time
Attempted robbery with offensive weapon
Error in sentencing
Sentence imposed for wrong offence
Application of guideline judgment for different offence
Enlargement of term of sentence for purposes of extended parole
Drug addiction
Rehabilitation
Special circumsances

LEGISLATION CITED:
Criminal Appeal Act 1912 s.6(3)

DECISION:
1. Extension of time within which to apply for leave to appeal granted. 2. Leave to appeal against the severity of the sentence imposed on the applicant in respect of attempted armed robbery with an offensive weapon granted, otherwise application dismissed. 3. Appeal against the sentence imposed in respect of such offence allowed and sentence quashed. 4. In lieu of the sentence imposed in the District Court in respect of such charge, the applicant is sentenced to a term of imprisonment for four years to commence on 20 July 2000 and to end on 19 July 2004. 5. Non-parole period fixed at 2 years to commence on 20 July 2000 and to end on 19 July 2002, on which date the applicant will become eligible for parole.

JUDGMENT:

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IN THE COURT OF
CRIMINAL APPEAL

60926/01
O’Keefe J
Smart AJ
15 May 2002

Regina v EDWARD MORGAN Cross

Judgment

O’KEEFE J:
INTRODUCTION

Edward Morgan Cross (“the applicant”) has applied for an extension of the time within which to make an application for leave to appeal against the severity of a sentence imposed on him in the District Court on 19 April 2001.
Having pleaded guilty in the Local Court to a charge of attempted robbery whilst armed with an offensive weapon and a charge of taking and driving a conveyance without the consent of the owner, the applicant was committed for sentence. The applicant adhered to his pleas before the District Court and asked the sentencing judge to take into account an offence of break, enter and steal. The Judge imposed a sentence of imprisonment for a term of six years to commence on 20 July 2000 and expire on 19 July 2006. He set the non-parole period at two years and five months to expire on 19 December 2002. This sentence took into account the offence of break, enter and steal which had been included on the Form 1 Schedule. On the charge of taking and driving a conveyance without consent, the applicant was sentenced to imprisonment for a fixed term of nine months to commence on 20 July 2000 and expire on 19 April 2001.
The application presently before the Court was filed on…

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 Cross

Details

AGLC: R v Cross [2002] NSWCCA 172
Case: [2002] NSWCCA 172
Decision Date: 15 May 2002

CaseChat Overview and Summary

In the case of R v Cross, the applicant, having previously pleaded guilty in the Local Court to charges of attempted robbery with an offensive weapon and taking and driving a conveyance without consent, sought to appeal against his sentence imposed by the District Court. The District Court had sentenced the applicant to imprisonment, with terms and non-parole periods specified for each offence. The applicant’s application for leave to appeal was made outside the usual time limits, necessitating the Court to consider whether an extension of time was warranted.

The central legal issue before the Court was whether the applicant's application for leave to appeal should be granted despite being filed beyond the statutory time limit. Additionally, the Court had to determine if the sentence imposed for the offence of attempted robbery was erroneous, given that the guideline judgment appeared to have been applied for a different offence. The Court also needed to consider whether the sentence could be enlarged for the purposes of extended parole, taking into account the applicant's drug addiction and prospects of rehabilitation.

The Court found that while the application for leave to appeal was indeed filed beyond the permissible time frame, the applicant’s circumstances warranted an extension. The Court identified that the sentencing judge had imposed a sentence for the wrong offence, misapplying the guideline judgment intended for a different offence. Consequently, the Court allowed the appeal and quashed the sentence. In its place, the Court imposed a new sentence that appropriately reflected the applicant’s offending. This sentence also considered the applicant's drug addiction and prospects for rehabilitation under special circumstances. The Court’s decision thus not only addressed the procedural issue of the late application but also rectified the substantive error in the original sentencing process.

The final orders of the Court included granting leave to appeal, quashing the original sentence, and imposing a new sentence that appropriately reflected the applicant’s offending, taking into account his drug addiction and prospects for rehabilitation.

Orders

Orders of the court

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Background

Background to the litigation

Having pleaded guilty in the Local Court to a charge of attempted robbery whilst armed with an offensive weapon and a charge of taking and driving a conveyance without the consent of the owner, the applicant was committed for sentence. The applicant adhered to his pleas before the District Court and asked the sentencing judge to take into account an offence of break, enter and steal. The Judge imposed a sentence of imprisonment for a term of six years to commence on 20 July 2000 and expire on 19 July 2006. He set the non-parole period at two years and five months to expire on 19 December 2002. This sentence took into account the offence of break, enter and steal which had been included on the Form 1 Schedule. On the charge of taking and driving a conveyance without consent, the applicant was sentenced to imprisonment for a fixed term of nine months to commence on 20 July 2000 and expire on 19 April 2001. The application presently before the Court was filed on 21 December 2001; that is some eight months after the date on which the sentence was imposed and some seven months after the date fixed for the making an application for leave to appeal had passed.FACTS At about 8.30am on 28 November 1999, the applicant went into a newsagency at Matraville armed with a syringe which was filled with a red fluid presumed to be blood. At the time, he was wearing a long blonde wig, a dark coloured beanie pulled down over his head and dark sunglasses. He had with him an empty white plastic shopping bag. The applicant approached a female who was standing behind the sales counter and told her to put money in the bag or he would stab her. Instead of doing so, the victim yelled out her husband’s name whereupon the applicant ran from the shop without any proceeds from his criminal endeavour. As it happened, the lady’s husband was not present on the premises at the relevant time. Having left the newsagency, the applicant made his escape in a red 1983 Mazda 626 sedan, registered number RSR 648. This vehicle had been stolen from Maroubra some two weeks prior to the attempted robbery at the newsagency. At about 8.55am - that is, some 25 minutes after the attempted robbery - a police patrol car sighted the red Mazda 626 in a carpark which formed part of a shopping complex at Pagewood. The vehicle was stationary, with the driver’s door slightly open. The applicant was the sole occupant of the vehicle, and was occupying the driver’s seat. The applicant was arrested. At the time he was wearing a pair of dark sunglasses. A search of the vehicle revealed a blonde wig, a dark coloured beanie, a white plastic shopping bag, a syringe filled with a red substance and a grey wallet containing credit cards and other documents in the name of the applicant. The investigating police interviewed the owner of the vehicle, who identified the blonde wig and the grey beanie worn by the applicant as belonging to him and made a statement that those items were in the boot of his car at the time he last saw it on 14 November 1999.

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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