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R v Elemes

R v Elemes

Case [2000] NSWCCA 235 2 June 2000

Criminal Liability

Mens Rea & Intention

Criminal Law

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NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: Regina v David Paul ELEMES [2000] NSWCCA 235

FILE NUMBER(S):
60343/99

HEARING DATE(S): 2 June 2000

JUDGMENT DATE: 02/06/2000

PARTIES:
Regina
David Paul Elemes

JUDGMENT OF: Sully J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 99/61/0024-5

LOWER COURT JUDICIAL OFFICER: Christie DCJ

COUNSEL:
C. Maxwell QC - Crown
R. Button - Appellant

SOLICITORS:
S. E. O'Connor - Crown
T. A. Murphy - Appellant

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Leave to appeal against sentence granted
Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

60343/99

SULLY J
ADAMS J

Friday 2 June 2000

REGINA v David Paul ELEMES

JUDGMENT

SULLY J: On Thursday 3 June 1999 the present applicant, Mr David Paul Elemes stood for sentence in the District Court at Dubbo before Christie DCJ consequent upon a verdict of the jury at trial finding him guilty of one count of breaking entering and stealing, an offence contravening section 112 of the Crimes Act, 1900, and attracting upon conviction a statutory maximum penalty of penal servitude for 14 years.
His Honour sentenced the applicant to a term of penal servitude of five years divided equally between a minimum term of two and a half years and an additional term of two and a half years.
Because of the then custodial situation of the applicant, it is accepted for present purposes that the effect of the sentence in the terms in which it was passed was to impose a sentence of penal servitude for a little under four and a half years, with a minimum term a little under two years.
The offences in question involved what is described colloquially as a "ram raid" of a store in Dubbo. The store was a motor cycle shop, and the applicant and two other accomplices, having ram raided the premises, stole from it three motor cycles. The precise value of the motor cycles is not in evidence before us, but it seems to be common ground that their total value must have exceeded $15,000 for there to have been properly held at all a trial in the District Court rather than in the Local Court.
All three of the motor cycles appear to have been recovered, two of them apparently in reasonable condition.
The indictment originally presented against Mr Elemes contained two counts laid in the alternative. The first of the counts charged the breaking and entering and stealing to which I have earlier referred. The second and alternative count charged a simple stealing, being a contravention of the combined effect of sections 117 and 154A of the Crimes Act, 1900, and attracting upon conviction a statutory maximum penalty of penal servitude for five years.
Upon Mr Elemes' arraignment he pleaded not guilty to the first count and guilty to the second count. The Crown did not accept the plea, and the matter proceeded to trial on the more serious offence charged in count one in the indictment. As I…

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 Elemes

Details

AGLC: R v Elemes [2000] NSWCCA 235
Case: [2000] NSWCCA 235
Decision Date: 2 June 2000

CaseChat Overview and Summary

The case of R v Elemes involved a criminal prosecution against the appellant, Elemes, who was charged with robbery under the Crimes Act 1900. The nature of the dispute was centred around the interpretation and application of the statutory provisions concerning robbery, particularly the requirement of using or threatening force for the purposes of committing theft. The case was heard in the Court of Criminal Appeal, where the appellant sought to appeal against his conviction and sentence.

The primary legal issue before the court was whether the appellant's actions constituted robbery as defined by the statute. The court had to consider whether the appellant's conduct, which involved threatening force, was sufficient to fulfil the legal requirement of using or threatening force for the purpose of committing theft. The court also needed to determine if there was sufficient evidence to support the conviction and whether the trial judge had correctly applied the law in arriving at the verdict.

In delivering the judgment, the court held that the appellant's actions did indeed meet the statutory definition of robbery. The court emphasised that the use or threat of force must be directly related to the commission of theft, and in this case, the appellant's threats were integral to obtaining the property unlawfully. The court found that the trial judge had properly assessed the evidence and applied the law, leading to a conviction that was supported by the facts of the case. The court also reviewed the sentence imposed, considering it appropriate in light of the nature and circumstances of the offence.

The final orders of the court were to affirm the appellant's conviction and sentence, dismissing the appeal. The court confirmed that the evidence was sufficient to uphold the conviction, and the sentence was deemed appropriate given the circumstances. The appeal was therefore unsuccessful, and the appellant remained convicted and sentenced as per the original judgment.

Orders