R v Daniel Stephen Lewis - [2004] NSWCCA 383

CITATION: R v Daniel Stephen Lewis [2004] NSWCCA 383

HEARING DATE(S): 05/11/2004

JUDGMENT DATE:
5 November 2004

JUDGMENT OF: Giles JA at 38; Buddin J at 1; Smart AJ at 39

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Sentencing - robbery in company - applicability of guideline judgment - whether manifestly excessive

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Henry (1999) 46 NSWLR 346
R v Howard [2004] NSWCCA 348
R v Matthews [2004] NSW CCA 112
R v Morgan (1993) 70 A Crim R 358
R v Murchie (1999) 108 A Crim R 482

PARTIES :
Regina
Daniel Stephen Lewis (Applicant)

FILE NUMBER(S): CCA 2004/1838

COUNSEL: P Miller (Crown)
DC Andersen QC/G Heathcote

SOLICITORS: S Kavanagh (Crown)
PC Proctor (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0520

LOWER COURT
JUDICIAL OFFICER : Bell DCJ

2004/1838

GILES JA
BUDDIN J
SMART AJ
FRIDAY 5 NOVEMBER 2004

REGINA v DANIEL STEPHEN LEWIS

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him for an offence of robbery in company. The applicant was sentenced to a non-parole period of 2 years and 2 months and a total sentence of 3 years and 2 months imprisonment. Both terms were ordered to commence from the date of sentence which was 29 January 2004. The applicant is thus eligible for release to parole on 28 March 2006. The sentencing judge should have structured the sentence by first imposing the head sentence and then the non-parole period because the offence took place before the current form of s 44 of the Crimes (Sentencing Procedure) Act 1999 came into effect. However no point was taken in relation to this aspect of the matter and ultimately nothing turns upon it. The maximum penalty prescribed by the legislature for the offence is 20 years imprisonment.

2 The facts giving rise to the offence occurred at about 1.40 pm on Tuesday 8 October 2002 (which was the day following a long weekend). Having completed counting the weekend’s takings from the nightclub at which he worked which is located in Oxford Street, Darlinghurst, the victim placed the money into three deposit bags which in turn were placed into a small backpack. The victim then placed the backpack over his shoulder and arranged for a colleague to accompany him to the Commonwealth Bank at the intersection of Castlereagh and Liverpool Streets in the city where he intended to deposit the takings. Shortly after they had crossed the intersection of Liverpool and Elizabeth streets, the victim felt someone grab his right shoulder from behind and also felt what he thought was a fingertip placed into his right hand rib area. At that stage the applicant said to him “don’t turn around – just give me the bag. I know it’s insured. I know where you work. I know where you live. I know who your boyfriend is. I have a blood filled syringe. I’m HIV positive.”

3…

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 Daniel Stephen Lewis

Details

AGLC: R v Daniel Stephen Lewis [2004] NSWCCA 383
Case: [2004] NSWCCA 383
Decision Date: 5 November 2004

CaseChat Overview and Summary

The case of R v Daniel Stephen Lewis involved the defendant being convicted for his involvement in a robbery that took place in company. The matter was heard in the Supreme Court of New South Wales. The central issue was whether the sentence imposed by the trial judge was manifestly excessive in light of the applicable guideline judgments.

The court was required to determine if the trial judge had adequately considered the relevant principles and authorities governing the sentencing of crimes committed in company, particularly focusing on whether the sentence imposed was manifestly excessive. This involved an examination of the circumstances of the crime, the role of the defendant, and the sentencing principles as outlined in the guideline judgments.

In delivering the judgment, the court acknowledged the severity of the crime and the need for an appropriate sentence that reflects the gravity of the offence. However, the court found that the trial judge had comprehensively considered the relevant authorities and the particular circumstances of the case. The court held that the sentence imposed was not manifestly excessive, as it was within the range of sentences that could be considered appropriate for the offence committed in company. The court also noted the need for consistency in sentencing to ensure that similar crimes are treated similarly, and that the sentence imposed was not disproportionate when compared to other cases of a similar nature.

The final orders of the court confirmed the sentence imposed by the trial judge, reaffirming that the sentence was not manifestly excessive and was appropriate in the circumstances of the case. The defendant's appeal against the sentence was therefore dismissed.

Orders