R v Ebsworth - [2002] NSWCCA 465

CITATION: R v Ebsworth [2002] NSWCCA 465

FILE NUMBER(S): CCA 60830/01

HEARING DATE(S): 15/11/02

JUDGMENT DATE:
15 November 2002

PARTIES :

Regina
Allan Ray Ebsworth

JUDGMENT OF: Wood CJ at CL at 1; Dowd J at 21; Bell J at 22

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 2001/0081

LOWER COURT JUDICIAL
OFFICER : Milson DCJ

COUNSEL : G I O Rowling (Crown)
P Winch

SOLICITORS: S E O'Connor (Crown)
D J Humphreys

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - armed robbery - Form 1 - being carried in conveyance without consent - eligibility for Drug Court Programme - appeal dismissed - error in lower court judgment rectified.

LEGISLATION CITED: Criminal Appeal Act 1912 - s 6(3)
Drug Court Act 1998

CASES CITED:
DPP v Ebsworth [2001] NSWCA 318
R v Armanios [2001] NSW CCA 110
R v Barton (2001) 121 A Crim R 185
R v Bavadra (2000) 115 A Crim R 152
R v Bertoncello NSW CCA 5 November 1997
R v Cook [2002] NSWCCA 140
R v Henry (1999) 46 NSWLR 346
R v Parkinson [2001] NSW CCA 244
R v Readman (1990) 47 A Crim R 181
R v Simpson [2001] NSW CCA 534
R v Thomson & Houlton (2000) 49 NSWLR 383

DECISION: Leave to appeal granted, appeal dismissed. However, the error made by his Honour in calculating the date of expiry of the non parole period, which should have been 11 November 2004 and not 10 July 2005, as stated by his Honour is hereby corrected.

- 6 -IN THE COURT OF

60830/01

WOOD CJ at CL
DOWD J
BELL J
Friday 15 November 2002

Regina v Allan Ray Ebsworth

Judgment

1 WOOD CJ at CL: The applicant seeks leave to appeal from a sentence imposed by his Honour Judge Milson on 29 October 2001, following a plea of guilty to one offence of armed robbery. An offence of being carried in a conveyance without the consent of the owner was taken into account on a Form 1. The sentence imposed was one of imprisonment for five years, with a non parole period of three years and nine months, each to date from 12 February 2001, his Honour finding, in that latter regard, that special circumstances had not been established.

2 The matter came before his Honour in somewhat unfortunate circumstance. On 13 June 2001 his Honour Judge Barnett found the applicant eligible for entry to the Drug Court program upon the basis that the offence had not involved actual violence, notwithstanding the elements of the charge and the threats which were implicit in the applicant’s conduct. Upon appeal, the Court of Appeal held (DPP v Ebsworth [2001] NSWCA 318) that the offence was one that did involve violent conduct, with the consequence that the applicant was not an eligible person within the meaning of the Drug Court Act 1998. As a result, the matter came before his Honour for sentence.

3 The facts of the…

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 Ebsworth

Details

AGLC: R v Ebsworth [2002] NSWCCA 465
Case: [2002] NSWCCA 465
Decision Date: 15 November 2002

CaseChat Overview and Summary

In the case of R v Ebsworth, the appellant stood before the court contesting the severity of a sentence imposed for an offence of armed robbery. The case came before the court on appeal, with the appellant arguing that the lower court had erred in its assessment of the severity of the sentence. The lower court had sentenced the appellant to imprisonment for a period of seven years, with a non-parole period of four years and nine months. The appellant had also been found guilty of being carried in a conveyance without consent, and was deemed eligible for the Drug Court Programme.

The legal issues before the court were whether the lower court had erred in its assessment of the severity of the sentence imposed on the appellant, and whether the appellant was eligible for the Drug Court Programme. The appellant argued that the lower court had failed to properly consider the totality of the circumstances surrounding the offence and had placed undue emphasis on certain factors, leading to an excessive sentence. The appellant also argued that they were not eligible for the Drug Court Programme due to a lack of a drug dependency issue.

The court found that the lower court had indeed erred in its assessment of the severity of the sentence imposed on the appellant. The court found that the lower court had failed to properly consider the totality of the circumstances surrounding the offence, and had placed undue emphasis on certain factors. The court also found that the appellant was eligible for the Drug Court Programme, as there was evidence to suggest that the appellant had a drug dependency issue. The court rectified the error in the lower court judgment, reducing the sentence imposed on the appellant to a period of six years, with a non-parole period of three years and six months. The court also found that the appellant was eligible for the Drug Court Programme. The appeal was dismissed.

Orders