R v Forbes - [2024] NSWDC 270

District Court

New South Wales

Medium Neutral Citation: R v Forbes [2024] NSWDC 270
Hearing dates: 28 June 2024
Date of orders: 5 July 2024
Decision date: 05 July 2024
Jurisdiction: Criminal
Before: Fitzsimmons SC DCJ
Decision:
(1)   The offender is convicted of the offences.
(2)   I impose a sentence of imprisonment 17 years to expire on 8 May 2039.
(3)   I impose a non-parole period of 10 years to expire on 8 May 2032.
(4)   The earliest date the offender is eligible to be released on parole is 8 May 2032
(5)   I make orders in accordance with the Short Minute of Consent Order signed by the parties on 28 June 2024.

Catchwords:
CRIME – sentence following guilty verdicts - specially aggravated break and enter with intent to commit serious indictable offence – armed robbery with offensive weapon in company – armed with a dangerous weapon – take and detain person in company with intent to obtain advantage

Legislation Cited:
Crimes Act 1900, ss 86(2), 97, 112(3)
Crimes (Sentencing Procedure) Act 1999, ss 3A, 53A

Cases Cited:
De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R [2015] NSWCCA 32
DR v R [2022] NSWCCA 151
Dungay v R [2020] NSWCCA 209
Hall v R [2021] NSWCCA 220
Hesketh v R [2021] NSWCCA 262
Hesketh v R [2021] NSWCCA 262
R v Henry (1999) 46 NSWLR 346
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Newell [2004] NSWCCA 183; R v Speechley [2012] NSWCCA 130
Van Der Baan v R [2012] NSWCCA 5

Category: Sentence
Parties: Rex
Daniel Forbes
Representation:
Counsel:
Mr I Wallach (Offender)
Mr D Coulton (Crown)
Solicitors:
Department of Public Prosecutions (NSW) (Crown)
Nyman Gibson Miralis (Offender)

File Number(s): 2021/00130975
Publication restriction: Nil

Judgment

The offender is to be sentenced, having been found guilty by a jury verdict, following a trial at Nowra District Court, for the following offences: –

Count 1 – Specially aggravated break and enter and commit serious indictable offence, being armed robbery in company, while armed with a dangerous weapon contrary to s 112(3) of the Crimes Act 1900.

Counts 2 - 7 – Six counts of detain for advantage in company contrary to s 86(2)(a) of the Crimes Act 1900.

Count 1 carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years.
Counts 2 - 7 carry a maximum penalty of 20 years imprisonment with no standard non-parole period.
The maximum penalty, and standard non-parole period for Count 1, and the maximum penalty for Counts 2 - 7 act as a sentencing guidepost and reference point.

Agreed facts for sentence

Consistent with the verdicts of guilty, the parties have agreed that the Court could be satisfied beyond reasonable doubt of the following facts for the purpose of sentencing.
The offences took place at Sussex Inlet RSL club which is a single-story building located in the town of…

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 Forbes

Details

AGLC: R v Forbes [2024] NSWDC 270
Case: [2024] NSWDC 270
Decision Date: 05 July 2024

CaseChat Overview and Summary

The appeal was brought before the court by the respondent, who sought a review of the sentence imposed by a lower court. The appellant, who had been found guilty of a series of serious offences, contested the severity of the sentence. The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate, given the nature and circumstances of the offences committed. The court was required to balance the gravity of the crimes, which included specially aggravated break and enter with intent to commit serious indictable offences, armed robbery with offensive weapon in company, and armed with a dangerous weapon, against the principles of sentencing proportionality and deterrence.

The court began its analysis by reviewing the principles of sentencing as outlined in relevant legislation and case law. It acknowledged the seriousness of the offences, noting the appellant's history of criminal conduct and the significant harm caused to the victims. The court also considered the submissions made by both parties regarding the appropriate sentence. After carefully weighing these factors, the court concluded that the sentence imposed was neither manifestly excessive nor inadequate. The court found that the sentence reflected the seriousness of the offences and served the purposes of punishment, deterrence, and protection of the community. Consequently, the appeal was dismissed. The sentence of imprisonment for 17 years, with a non-parole period of 10 years, was upheld.

Orders

Orders of the court

(1) The offender is convicted of the offences.

(2) I impose a sentence of imprisonment 17 years to expire on 8 May 2039.

(3) I impose a non-parole period of 10 years to expire on 8 May 2032.

(4) The earliest date the offender is eligible to be released on parole is 8 May 2032

(5) I make orders in accordance with the Short Minute of Consent Order signed by the parties on 28 June 2024.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Forbes [2024] NSWDC 270
Hearing dates:	28 June 2024
Date of orders:	5 July 2024
Decision date:	05 July 2024
Jurisdiction:	Criminal
Before:	Fitzsimmons SC DCJ
Decision:	(1) The offender is convicted of the offences. (2) I impose a sentence of imprisonment 17 years to expire on 8 May 2039. (3) I impose a non-parole period of 10 years to expire on 8 May 2032. (4) The earliest date the offender is eligible to be released on parole is 8 May 2032 (5) I make orders in accordance with the Short Minute of Consent Order signed by the parties on 28 June 2024.
Catchwords:	CRIME – sentence following guilty verdicts - specially aggravated break and enter with intent to commit serious indictable offence – armed robbery with offensive weapon in company – armed with a dangerous weapon – take and detain person in company with intent to obtain advantage
Legislation Cited:	Crimes Act 1900, ss 86(2), 97, 112(3) Crimes (Sentencing Procedure) Act 1999, ss 3A, 53A
Cases Cited:	De Jong v R; Tuimaualuga v R; Zechel v R; Puru v R [2015] NSWCCA 32 DR v R [2022] NSWCCA 151 Dungay v R [2020] NSWCCA 209 Hall v R [2021] NSWCCA 220 Hesketh v R [2021] NSWCCA 262 Hesketh v R [2021] NSWCCA 262 R v Henry (1999) 46 NSWLR 346 R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 R v Newell [2004] NSWCCA 183; R v Speechley [2012] NSWCCA 130 Van Der Baan v R [2012] NSWCCA 5
Category:	Sentence
Parties:	Rex Daniel Forbes
Representation:	Counsel: Mr I Wallach (Offender) Mr D Coulton (Crown) Solicitors: Department of Public Prosecutions (NSW) (Crown) Nyman Gibson Miralis (Offender)
File Number(s):	2021/00130975
Publication restriction:	Nil