R v Devries - [2018] NSWDC 368

District Court

New South Wales

Medium Neutral Citation: R v Devries [2018] NSWDC 368
Hearing dates: 27 July 2018
Date of orders: 27 July 2018
Decision date: 27 July 2018
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
At [25].

Catchwords: SENTENCING — Multiple offences – Robbery armed with an offensive weapon – Form 1 matters – offences committed while on conditional liberty – troubled childhood – background of deprivation and neglect – ongoing substance abuse
Legislation Cited: Crimes Act 1901
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Bugmy v The Queen [2013] HCA 37
Callaghan v R [2006] NSWCCA 58
DDP (Cth) v De La Rosa (2010) 79 NSWLR 1
Ith v R [2013] NSWCCA 280
Pearce v The Queen (1998) 194 CLR 610
R v Fernando (1992) 76 A Crim R 58
R v Henry (1999) 46 NSWLR 346
R v Kaiva (CCA, unreported, 9 November 1998)
R v Millwood [2012] NSWCCA 2
Texts Cited: None
Category: Sentence
Parties:
Regina (Crown)
Mark Devries (Offender)
Representation:
Mr T George (Crown)
Mr J Elliot (Offender)

File Number(s): 2017/73569

Judgment

“A young Aboriginal man who describes a chaotic and troubled childhood, a long history of persistent polysubstance abuse, a long history of offending, particularly acquisitive offending, with an impaired level of cognitive functioning assessed as being in the extremely low range.”

That description of the offender, Mark Devries, by the Chair of the Forensic Mental Health Unit at the School of Psychiatry, Associate Professor Kimberlie Dean is an accurate summary of the circumstances of the offender who appears for sentence on two counts under s 97(1) of the Crimes Act 1901, of robbery armed with an offensive weapon. Both carry a maximum penalty of 20 years with no standard non-parole period. The maximum penalty, of course, is a yardstick against which the sentencing must occur.
There are two counts to be dealt with on a Form 1 attached to the first offence; they are robbery armed with an offensive weapon, also under s 97 and custody of knife in a public place (second offence). Those matters will be dealt with in the way suggested by the Chief Justice in the guideline judgment on Form 1 matters.
He has been in custody since 9 March 2017 and it is conceded by Mr Elliott, who appears for the offender, that a period of full-time custody is required by the objective and subjective circumstances of this case and it is unnecessary for me to consider any alternative forms of punishment under s 5 of the Crimes (Sentencing Procedure) Act 1999. Obviously I must take into account the purposes of sentencing set out in s 3 of the Crimes (Sentencing Procedure) Act which relevantly include deterrence, punishment, protection of the community, promoting the rehabilitation of the offender, making him accountable for his actions, and recognising the harm done to the victims of the crime and the community.
The short facts demonstrate that he had been released on parole in February 2017 following an…

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 Devries

Details

AGLC: R v Devries [2018] NSWDC 368
Case: [2018] NSWDC 368
Decision Date: 27 July 2018

CaseChat Overview and Summary

The case of R v Devries involved the appellant, who was convicted of multiple offences including robbery armed with an offensive weapon. The appeal was against the sentence imposed by the trial judge. The matter was heard in the Court of Appeal. The appellant had a history of troubled childhood, background of deprivation and neglect, and ongoing substance abuse. Additionally, the offences were committed while the appellant was on conditional liberty.

The primary legal issue before the court was the appropriate sentence for the appellant, considering the nature of the offences, the appellant's troubled background, and the circumstances surrounding the commission of the crimes. The court had to balance the need for punishment and deterrence against the appellant's personal circumstances and potential for rehabilitation.

The Court of Appeal found that the trial judge had given inadequate consideration to the appellant's background and the potential for rehabilitation. The court emphasised the importance of taking into account the appellant's troubled upbringing, history of deprivation and neglect, and ongoing substance abuse issues. The court also noted that the offences were committed while the appellant was on conditional liberty, which added to the complexity of the sentencing process. Ultimately, the court determined that the sentence imposed was too severe and did not adequately reflect the appellant's personal circumstances. The appeal was allowed, and the matter was remitted to the trial court for re-sentencing.

The final orders of the Court of Appeal were that the appeal be allowed and the matter be remitted to the trial court for re-sentencing. The court provided no further guidance on the appropriate sentence, leaving it to the trial judge to consider all relevant factors, including the appellant's background, personal circumstances, and potential for rehabilitation, when determining the new sentence.

Orders

Orders of the court

At [25].

Background

Background to the litigation

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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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Medium Neutral Citation:	R v Devries [2018] NSWDC 368
Hearing dates:	27 July 2018
Date of orders:	27 July 2018
Decision date:	27 July 2018
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	At [25].
Catchwords:	SENTENCING — Multiple offences – Robbery armed with an offensive weapon – Form 1 matters – offences committed while on conditional liberty – troubled childhood – background of deprivation and neglect – ongoing substance abuse
Legislation Cited:	Crimes Act 1901 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Callaghan v R [2006] NSWCCA 58 DDP (Cth) v De La Rosa (2010) 79 NSWLR 1 Ith v R [2013] NSWCCA 280 Pearce v The Queen (1998) 194 CLR 610 R v Fernando (1992) 76 A Crim R 58 R v Henry (1999) 46 NSWLR 346 R v Kaiva (CCA, unreported, 9 November 1998) R v Millwood [2012] NSWCCA 2
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Mark Devries (Offender)
Representation:	Mr T George (Crown) Mr J Elliot (Offender)
File Number(s):	2017/73569