R v Gavin James Edwards aka Gibbs - [2011] NSWDC 222

District Court

New South Wales

Medium Neutral Citation: R v Gavin James Edwards aka Gibbs [2011] NSWDC 222
Hearing dates: 25 May 2011
Decision date: 25 May 2011
Before: Judge S Norrish QC
Decision:
Count 1: Convicted. Sentenced to a term of imprisonment of 2 years and 3 months to commence on 07/7/11 and to expire on 06/10/13.
Count 2: Convicted. Sentenced to a term of imprisonment of 3 years and 4 months to commence on 07/07/12 and expire on 06/11/15 with a non parole period being 1 year and 7 months to commence on 07/07/12 and to expire on 06/02/14.
Appeal
H40486527 - 004 & 5
In respect of each matter (taking into account a Form 1 matter in one matter):
Conviction confirmed
Term of imprisonment (18 months) confirmed commencement date varied from 18/10/10 to 7/10/10 and to expire 6/4/12.
Non parole period quashed.

Catchwords: SENTENCING: Breaking entering and stealing, robbery in company: special reasons, Aboriginal offender.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Thomson and Houlton (2000) 49 NSWLR 383
R v Fernando (1992) 76 A Crim R 58
Newman and Simpson [2004] NSWCCA 102
R v Henry (1999) NSWCCA 111
Blackburn & Walters [2001] NSWCCA 121
Cahyadi v Regina [2007] NSWCCA 1
R v Bloomfield (1998) 101 A Crim R 404
R v Monteiro [2011] NSWCCA 113
R v Ponfield (1999) 48 NSWLR 327
Category: Sentence
Parties: Regina
Gavin James Edwards aka Gibbs
Representation: Mr Simpson (Crown)
Mr Lawrence (Offender)

File Number(s): 2010/92566 2010/332243

Sentence

HIS HONOUR: Gavin James Gibbs appears today for sentence in relation to two matters on indictment and in relation to an appeal concerning three matters dealt with at the Local Court on 16 November 2010. I will deal with the matters in effective chronological order.

When the offender appeared at the Local Court on 16 November 2010 he had been in custody since 8 October 2010. He was then convicted of two counts of breaking, entering and stealing contrary to s 122(1) Crimes Act 1900 , which carry, when dealt with at the Local Court, a maximum penalty of two years imprisonment and/or a fine of $11,000.

I am informed that a matter was taken into account on a Form 1, being also, as I understand it, an offence of breaking, entering and stealing. I was unaware that matters in the Local Court could be dealt with on a Form 1. Neither the Crown, nor the defence, have disabused me of a Local Court's jurisdiction to deal with the matter that way. I have not had a chance to check this, because I have been busy with other work, and I am sentencing this offender on the same day as the evidence and the submissions to research the topic. I will accept that what happened before the Local Court was procedurally fair and legal.

In relation to the two offences for which the offender was sentenced the prisoner on a plea of guilty was sentenced to eighteen…

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.

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Details

Case: [2011] NSWDC 222
Decision Date: 25 May 2011

CaseChat Overview and Summary

In the case of R v Gavin James Edwards aka Gibbs, the accused faced charges of breaking and entering, stealing, and robbery while in the company of another. The case was heard and determined by the Supreme Court of a state in Australia. The primary dispute centred around the sentencing of the accused for the aforementioned offences, with particular attention paid to the applicability of special considerations given the offender's Indigenous background.

The legal issues that the court had to decide included the appropriate sentencing framework for the crimes committed, the degree of culpability and moral blameworthiness of the offender, and the consideration of any special circumstances that could mitigate the sentence. The court was also tasked with determining whether there were any grounds for appeal in terms of the sentence length, the non-parole period, and the commencement date of the sentence.

In its reasoning, the court carefully considered the nature and circumstances of the offences, the offender's background, and the principles of sentencing for Indigenous offenders. The court concluded that the sentences imposed were appropriate, taking into account the gravity of the crimes and the need for general and specific deterrence. However, the court did vary the commencement date of the sentence for one of the matters and quashed the non-parole period due to procedural errors. The appeal was dismissed, and the conviction and sentence were confirmed with the noted adjustments.

The final orders of the court were to confirm the convictions and sentences, with adjustments to the commencement date of the sentence for one matter and the quashing of the non-parole period. The term of imprisonment for the first count was set to commence on 7 July 2011 and expire on 6 October 2013, while for the second count, it was to commence on 7 July 2012 and expire on 6 November 2015, with a non-parole period from 7 July 2012 to 6 February 2014.

Orders

Orders of the court

Count 1: Convicted. Sentenced to a term of imprisonment of 2 years and 3 months to commence on 07/7/11 and to expire on 06/10/13.

Count 2: Convicted. Sentenced to a term of imprisonment of 3 years and 4 months to commence on 07/07/12 and expire on 06/11/15 with a non parole period being 1 year and 7 months to commence on 07/07/12 and to expire on 06/02/14.

Appeal

H40486527 - 004 & 5

In respect of each matter (taking into account a Form 1 matter in one matter):

Conviction confirmed

Term of imprisonment (18 months) confirmed commencement date varied from 18/10/10 to 7/10/10 and to expire 6/4/12.

Non parole period quashed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Gavin James Edwards aka Gibbs [2011] NSWDC 222
Hearing dates:	25 May 2011
Decision date:	25 May 2011
Before:	Judge S Norrish QC
Decision:	Count 1: Convicted. Sentenced to a term of imprisonment of 2 years and 3 months to commence on 07/7/11 and to expire on 06/10/13. Count 2: Convicted. Sentenced to a term of imprisonment of 3 years and 4 months to commence on 07/07/12 and expire on 06/11/15 with a non parole period being 1 year and 7 months to commence on 07/07/12 and to expire on 06/02/14. Appeal H40486527 - 004 & 5 In respect of each matter (taking into account a Form 1 matter in one matter): Conviction confirmed Term of imprisonment (18 months) confirmed commencement date varied from 18/10/10 to 7/10/10 and to expire 6/4/12. Non parole period quashed.
Catchwords:	SENTENCING: Breaking entering and stealing, robbery in company: special reasons, Aboriginal offender.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Thomson and Houlton (2000) 49 NSWLR 383 R v Fernando (1992) 76 A Crim R 58 Newman and Simpson [2004] NSWCCA 102 R v Henry (1999) NSWCCA 111 Blackburn & Walters [2001] NSWCCA 121 Cahyadi v Regina [2007] NSWCCA 1 R v Bloomfield (1998) 101 A Crim R 404 R v Monteiro [2011] NSWCCA 113 R v Ponfield (1999) 48 NSWLR 327
Category:	Sentence
Parties:	Regina Gavin James Edwards aka Gibbs
Representation:	Mr Simpson (Crown) Mr Lawrence (Offender)
File Number(s):	2010/92566 2010/332243