R v Evans

[2000] NSWCCA 20

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R v Evans [2000]  NSWCCA 20

FILE NUMBER(S):
60148/99

HEARING DATE(S):            Monday 21 February 2000

JUDGMENT DATE: 21/02/2000

PARTIES:
Regina v Jason Jeffrey Evans

JUDGMENT OF:      Grove J Greg James J    

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):        98/31/0453

LOWER COURT JUDICIAL OFFICER:     Job DCJ

COUNSEL:
M. Grogan (Crown)
P.D. Rosser QC (Appellant)

SOLICITORS:
S.E. O'Connor (Crown)
Turnbull Hill (Appellant)

CATCHWORDS:
Criminal Law and Procedure
Sentence
Significant Assistance to Authority
Admissions and Plea of Guilty in Absence of Available Other Evidence
Demonstrated Reformation
Notional Sentence Before Discount Excessive

LEGISLATION CITED:

DECISION:
Appeal Allowed
Resentenced

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60148/99

GROVE J
  GREG JAMES J

Monday 21 February 2000

REGINA  v   JASON JEFFREY EVANS

JUDGMENT

1. GROVE J:   This is an application for leave to appeal against the severity of sentence imposed upon the appellant by Job DCJ in the Newcastle District Court.

1. On 16 March 1999 his Honour sentenced the appellant in respect of seven counts of aggravated armed robbery to concurrent terms of penal servitude comprising Minimum Terms of six years and Additional Terms of three years.

1. His Honour reached his conclusion, having applied a discount of 50 percent for reasons which he gave, to the sentence otherwise assessed. The discount was for assistance to authority in the arrest and prosecution of very serious major offenders and I do not need to elaborate the thorough and careful approach taken by his Honour to reach this conclusion which is manifest in his remarks.

1. It appears that the appellant became acquainted with what one could only describe as a gang of criminals, by reason of his friendship with a young girl. The appellant is now aged 27 years. As a result of that friendship he came under the influence of the girl's father who was, it appears, an active member of a gang involved in the conduct of serial armed robberies. The appellant was recruited to join them.

1. He was spoken to by police and made full confession of his participation and beyond that, gave police what appears to be all the information at his disposal. I do not need to emphasize the risks which that sort of cooperation poses for a person who is in custody.

1. When the appellant appeared for sentence the following matters were available for consideration by his Honour. They were tabulated in a helpful written submission by Mr Rosser Q.C. who appeared for the appellant. Those matters were: the absence of any prior criminal record; the disclosure by the appellant of his involvement in the offences in  circumstances where the police were not in possession of relevant evidence, although he was a suspect; the early plea of guilty; the circumstances in which the appellant became involved which I have sketched; and the finding by his Honour which was compatible with the observations by the police officer, that the appellant was truly remorseful, not only for his own family's sake, but for his victims.

1. The evidence before his Honour was that a police officer spent many, many days with the appellant, as a result of which information contained in a 78-page statement became available to law enforcement authorities. As his Honour observed, the result of the appellant's apparent reformation is that he will remain whilst in custody on witness protection, and it was observed that on his release it may be that he will require re-location.

1. The circumstances of the offences were described by the learned sentencing judge in his remarks, and there is no need for me to repeat them. It must be observed however that the offences were serious in nature, involving as they did attacks upon business people with weapons and with other aggravating circumstances.

1. However, that said, it is plain, even from the brief remarks that I have made, that the proper application of legal principle would lead to a very considerable discount from any higher sentence, by reason of the assistance to the authorities which this appellant has given and is continuing to render.

1. Job DCJ assessed the discount at fifty percent and it has not been contended by the Crown that his Honour was in error in making that assessment. However, as Mr Rosser pointed out, that would mean that his Honour must have started with an assessment of the appellant's criminality by a sentence reflecting this in a total of some 18 years penal servitude prior to the discount, and the short submission he made is that, given the whole of the circumstances, that ought to be categorized as manifestly excessive. In my view the submission by the appellant is made out.

1. That is not to say however that the appellant's activity must not attract a severe sentence.  There is no need for me to repeat all the matters that have been set out in his Honour's remarks on sentence.  It is perhaps an indication of the appellant's sincerity that, when he offered the information to police, he sought no pact in relation to his own sentencing proceedings, but rather came forth with the information to which I have referred.

1. Nevertheless it seems to me that on re-sentence it is still necessary in order to properly reflect the circumstances objectively of these offences to postulate a sentence in the order of fifteen years. Like his Honour I would also apply a fifty percent discount and for the reasons given by his Honour I too would find that special circumstances should lead to a variation of the division of sentence under s5(2) of the Sentencing Act.

1. Accordingly I propose the following orders:

1. That the application for leave to appeal be granted.

1. That the appeal be allowed and the sentences imposed in the District Court quashed and in lieu thereof the following sentences be imposed;

1. On each count, to be served concurrently, a total sentence of seven and a half years imprisonment, to be divided into Minimum Terms of five years commencing on 31 July 1998 and expiring on 30 July 2003, together with Additional Terms of two and a half years commencing on 31 July 2003.

1. The appellant would be eligible for parole from 1 July 2003.

1. GREG JAMES J:   I agree.

1. GROVE J: The orders of the Court therefore will therefore be as I have proposed.

**********

LAST UPDATED:            22/10/2008