R v Daniels - [2001] NSWCCA 181

CITATION: R v Daniels [2001] NSWCCA 181 revised - 18/05/2001

FILE NUMBER(S): CCA 60113/00

HEARING DATE(S): 11.5.01

JUDGMENT DATE:
11 May 2001

PARTIES :

Regina
Garry Daniels

JUDGMENT OF: Carruthers AJ at 1; Badgery-Parker AJ at 27

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0434

LOWER COURT JUDICIAL
OFFICER : Coolahan DCJ

COUNSEL : W L Robinson QC (Crown)
P R Boulton (App)

SOLICITORS: S E O'Connor (Crown)
D H Cohen & Co (App)

CATCHWORDS: Appeal against severity - robbery - using an offensive instrument to prevent lawful apprehension - Judge overlooked s439 of the Crimes Act 1900 (now s 22 of the Crimes (Sentencing Procedure) Act 1999 - On appeal discount allowed for plea of guilty on second day of trial.

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

CASES CITED:
Roos v Director of Public Prosecutions (1994) 34 NSWLR 254
R v Barton [2001] NSWCCA 63
R v Hamilton (1993) 66 A Crim R 575
R v Perez (Unreported, NSWCCA 11 December 1991)
R v Tooth [2000] NSWCCA 482

DECISION: Sentence on the first count confirmed. For s 33B matter: leave to appeal granted, appeal allowed. Applicant re-sentenced to an overall period of 5 years, from 2 October 2002 - 1 October 2007. Non-parole period of 3 years, from 2 October 2002 - 1 October 2005.

- 10 -1 CARRUTHERS AJ: Garry Richard Daniels seeks leave to appeal against sentences imposed upon him by his Honour Judge Coolahan at the Newcastle District Court on 21 March 2000. On 28 February 2000 the applicant was arraigned before his Honour and a jury of twelve upon an indictment containing two counts. The first count was one of robbery pursuant to s 94 of the Crimes Act 1900 (hereinafter called "the Act" which offence carries a maximum penalty of 14 years imprisonment. The second count was one of use offensive instrument to prevent lawful apprehension pursuant to s 33B of the Act, which offence carries a maximum penalty of 12 years imprisonment.

2 The applicant pleaded not guilty to each count and the trial proceeded with the Crown calling evidence in relation to the first count. However, on the second day of the trial the applicant sought to be re-arraigned on the second count and then pleaded guilty to that count. On the same day the jury later returned a verdict of guilty on the first count.

3 When the matter came before his Honour for sentence on 21 March 2000, his Honour was asked to take into account when sentencing the applicant in relation to the first count, the following matters on a Form 1, one offence of steal a motor vehicle, one offence of possess cannabis leaf, one offence of drive with mid-range PCA, and one offence of drive whilst disqualified.

4 In relation to the first count and taking into account the Form 1 matters, his Honour sentenced the applicant to imprisonment for four years, commencing on 2 October 1999 (on which date…

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 Daniels

Details

AGLC: R v Daniels [2001] NSWCCA 181
Case: [2001] NSWCCA 181
Decision Date: 11 May 2001

CaseChat Overview and Summary

The case of R v Daniels involves an appeal against the severity of a sentence handed down by a lower court. The appellant, Daniels, was convicted of robbery and for using an offensive instrument to prevent lawful apprehension. The case was heard in the higher court, which was tasked with reviewing the severity of the sentence imposed. The primary focus of the appeal was whether the sentence was appropriate given the circumstances and whether the lower court had overlooked a relevant section of the Crimes Act.

The legal issues before the court were whether the judge had correctly applied the law in relation to sentencing, specifically whether the judge had considered all available discounts and applicable sections of the legislation. One significant point of contention was whether the judge had overlooked section 439 of the Crimes Act 1900, now section 22 of the Crimes (Sentencing Procedure) Act 1999, which provides for a discount in sentence for a plea of guilty. Additionally, the court had to consider whether the sentence was proportionate to the crime committed.

In its decision, the court found that the judge had indeed overlooked the discount available under section 22 for Daniels' plea of guilty, which was entered on the second day of the trial. The court concluded that the failure to apply this discount constituted an error in the sentencing process. The court further noted that while the severity of the crime warranted a substantial sentence, the failure to apply the discount meant the sentence was harsher than it should have been. Consequently, the court allowed the appeal on the basis of the incorrect application of the sentencing discount, and the matter was remitted to the lower court for re-sentencing.

The final orders of the court were that the appeal was allowed, and the case was remitted to the lower court for re-sentencing with the appropriate discount applied. This means that Daniels will face a potentially reduced sentence following the re-sentencing process.

Orders