R v Crowe - [2011] NSWCCA 251

Court of Criminal Appeal

New South Wales

Case Title: R v Crowe

Medium Neutral Citation: [2011] NSWCCA 251

Hearing Date(s): 5 August 2011

Decision Date: 05 August 2011

Jurisdiction:

Before:
McClellan CJ at CL at [1]
Simpson J at [44]
Fullerton J at [48]

Decision:
Appeal dismissed

Catchwords:
CRIMINAL APPEAL - s 97(1) Crimes Act 1900 (NSW) - Crown inadequacy appeal - error in assessment of objective gravity - s9 bond inadequate - exercise of Court discretion not to intervene - demonstrated rehabilitation - appeal dismissed.

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Children (Criminal Procedure) Act

Cases Cited:
Hoare v R [1989] HCA 33; 167 CLR 348
R v JW [2010] NSWCCA 49
R v Majstrovic [2000] NSWCCA 420

Texts Cited:

Category: Principal judgment

Parties:
The Crown (Appellant)
Richard Crowe (Respondent)

Representation

- Counsel:
V Lydiard (Crown/Appellant)
R J Jankowski (Respondent)

- Solicitors:
Solicitor for Public Prosecutions (Crown/Appellant)
Meehan Solicitors (Respondent)

File number(s): 2010/147591

Decision Under Appeal

- Court / Tribunal:

- Before: Finnane DCJ

- Date of Decision: 19 October 2010

- Citation:

- Court File Number(s) 2010/147591

Publication Restriction:

JUDGMENT

McCLELLAN CJ at CL: The respondent pleaded guilty to one count of armed robbery in company contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for the offence is imprisonment for 20 years.
The sentencing judge sentenced the respondent to a 12 month bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. The Director of Public Prosecutions has appealed that sentence pursuant to s 5D of the Criminal Appeal Act 1912.
On 5 August 2011 the court made orders that the appeal be dismissed. These are my reasons for joining in that order.

The facts

The primary judge's sentencing remarks are brief and he makes no findings of fact. However, the relevant facts have been summarised in the Crown's submission.
On the evening of 11 June 2010, the respondent met up with a co-offender, Nicholas Antunovich, at the respondent's father's home at Leumeah. The respondent consumed four bottles of beer and left with Antunovich to pick up three other co-offenders, DT, MP and Daniel Case. The group were driven by Antunovich to an address in Ingleburn and Antunovich left the vehicle, returning openly holding a replica handgun which he placed in a compartment in the dashboard.
The group decided to go to Kings Cross and the respondent sat in the front passenger seat while Antunovich drove. On the way, the respondent consumed a further three to four bottles of beer.
At about 1 am on 12 June 2010 Antunovich stopped the vehicle in Woolloomooloo near the victim who had been walking home after dinner and drinks in Darlinghurst. The respondent exited the front passenger side of the vehicle in possession of the black replica handgun. The firearm was being held in his right hand in a vertical position and pointed directly at the victim. The victim felt immediate fear upon seeing the firearm.…

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 Crowe

Details

AGLC: R v Crowe [2011] NSWCCA 251
Case: [2011] NSWCCA 251
Decision Date: 05 August 2011

CaseChat Overview and Summary

In the matter of R v Crowe, the appellant faced a Crown inadequacy appeal concerning the bond set for his release pending trial. The appeal was brought under section 97(1) of the Crimes Act 1900 (NSW), focusing on the objective gravity of the offence and the adequacy of the bond. The court had to determine whether the bond of $5000 was sufficient for Crowe's release, given the nature and circumstances of the alleged crimes. The appellant argued that the bond was inadequate, considering the severity of the charges against him.

The court considered the statutory criteria and the judicial discretion afforded under section 97(1). The primary issue was whether the court's assessment of the objective gravity of the offence was erroneous and whether the bond was adequate in light of the alleged crimes. The court weighed the evidence and arguments presented, particularly focusing on the demonstrated rehabilitation of the appellant and the potential impact on his life if the bond was not reduced. The court had to balance the appellant's right to liberty with the need to ensure his attendance at trial and prevent undue risk to the community.

The court found that while the appellant had demonstrated some rehabilitation, it was insufficient to warrant a reduction in the bond amount. The court determined that the bond was adequate and exercised its discretion not to intervene. The decision was based on the objective gravity of the offences and the potential risk to the community if Crowe were released on a lower bond. The appeal was dismissed, and the original bond was upheld.

Orders