R v DM - [2005] NSWCCA 181

CITATION:
R v DM [2005] NSWCCA 181

HEARING DATE(S): 20 May 2005

JUDGMENT DATE:

18 July 2005

JUDGMENT OF:
Grove J at 1; Hulme J at 2; Simpson J at 33

DECISION:
(i) leave to appeal granted; (ii) appeal allowed in part, to the extent that the sentence imposed in respect of the first count, of robbery in company with wounding committed on 10 January 2003: the sentence imposed quashed and in lieu thereof the applicant sentenced to imprisonment for five years and three months, commencing on 25 June 2004 and expiring on 24 September 2009, with a non-parole period of two years expiring on 24 June 2006.

CATCHWORDS:
application for leave to appeal against severity of sentence - robbery in company with wounding - detain person in company with intent to obtain advantage - robbery in company - detain - pleas of guilty - offences taken into account - applicant on conditional liberty - accumulation of sentence - youthful offender - special considerations applying to sentencing of children - totality - subjective circumstances - whether overall sentence manifestly excessive - special circumstances - promotion of rehabilitation - sequential and partially overlapping sentences - ratio between non-parole period and overall sentence

LEGISLATION CITED:

Children (Criminal Proceedings) Act 1987, s3, s6, s17
Crimes Act 1900, s66A
Crimes (Sentencing Procedure) Act 1999, Part 3 Division 3, s44, s45

CASES CITED:
R v JDB [2005] NSWCCA 102; unreported, 24 March 2005
R v Hearne (2001) NSWCCA 37; 124 A Crim R 451
Johnson v The Queen [2004] HCA 15; 78 ALJR 616
R v GDP (1991) 53 A Crim R 112
Veen v R (No 2) [1987-1988] 164 CLR 465

PARTIES:
Crown - Respondent
DM - Applicant

FILE NUMBER(S):
CCA 2005/97

COUNSEL:
G Rowling - Crown
A Francis - Applicant

SOLICITORS:
S Kavanagh - Crown
S O'Connor - Applicant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/21/0037

LOWER COURT JUDICIAL OFFICER:
Delaney DCJ

2005/97

GROVE J
HULME J
SIMPSON J
Monday 18 July 2005

R v DM

Judgment

1 GROVE J: I agree with Simpson J.

2 HULME J: The Applicant for leave to appeal was, on 19 May 2004, sentenced in respect of 4 charges. The charges and the sentences imposed were:-

(i) Robbery in company, with wounding, committed on 10 January 2003 – imprisonment for 5 years 3 months with a non-parole period of 3 years, both periods commencing on 25 June 2004;

(ii) Detain person in company with intent to obtain advantage, committed on 9 June 2003 – imprisonment for a fixed term of 2 years, commencing on 25 June 2003;

(iii) Robbery in company, committed on 18 June 2003 – imprisonment for a fixed term of 2 years and 6 months, commencing on 25 March 2004; and

3 The victim of the first offence…

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 DM

Details

AGLC: R v DM [2005] NSWCCA 181
Case: [2005] NSWCCA 181
Decision Date: 18 July 2005

CaseChat Overview and Summary

In the matter of the Crown versus DM, the applicant seeks leave to appeal against the severity of a sentence imposed following his conviction for robbery in company with wounding. The case was heard in the Court of Appeal. The applicant was found guilty of detaining a person in company with intent to obtain an advantage, specifically robbery in company, where the victim was detained and wounded during the incident. The applicant entered pleas of guilty to the charges, and several prior offences were taken into account.

The primary legal issue before the court was whether the overall sentence imposed was manifestly excessive. The court was required to consider the special considerations that apply to sentencing children and the totality of the circumstances, including the subjective circumstances of the applicant. The court had to determine if the sentence was disproportionate, taking into account the ratio between the non-parole period and the overall sentence, and whether the sentence promoted the rehabilitation of the applicant. Additionally, the court needed to assess the appropriateness of imposing sequential and partially overlapping sentences.

The court determined that the sentence was not manifestly excessive. The court considered the special circumstances of the applicant, including his age at the time of the offence and his status as a youthful offender. The court also noted the subjective circumstances, such as the applicant's remorse, his cooperation with authorities, and his efforts towards rehabilitation. The court found that the overall sentence was proportionate and appropriate, considering the nature and circumstances of the offence. The non-parole period was deemed reasonable in relation to the overall sentence, and the imposition of sequential and partially overlapping sentences was considered justified. Therefore, the application for leave to appeal against the severity of the sentence was dismissed.

Orders