R v Gibson - [2019] NSWDC 923

District Court

New South Wales

Medium Neutral Citation: R v Gibson [2019] NSWDC 923
Decision date: 15 November 2019
Jurisdiction: Criminal
Before: Payne DCJ
Decision:
Aggregate sentence of four years eight months, with a non-parole period of two years six months

Catchwords:
SENTENCING – property offences – aggravated enter dwelling-house with intent to commit serious indictable offence, Crimes Act 1900 s 111(2) – aggravated break and enter and commit serious indictable offence, Crimes Act 1900 s 112(2) – break and enter with intent to commit serious indictable offence, Crimes Act 1900 s 113(1)
SENTENCING – aggravating factors – home of victim or any other person
SENTENCING – relevant factors on sentence – deterrence – general and specific deterrence – relevant factors on sentence – multiple offences – aggregate sentences – totality re existing offences -

Legislation Cited:
Crimes Act 1900, ss 111(2), 112(2), 113(1)
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Chung v R [2017] NSWCCA 48
R v Bennett [2014] NSWCCA 197

Category: Sentence
Parties: Regina (Crown)
Damien Boyd Gibson (Offender)
Representation:
Counsel:
C Day (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Aboriginal Legal Service (Offender)

File Number(s): 2018/261533, 2018/314503

Judgment

In relation to this matter, Damien Boyd Gibson comes before the Court in respect of a number of offences. The first offence I refer to is what was Count 1 in an indictment, an offence contrary to s 112(2) of the Crimes Act 1900. The offence is one of aggravated break and enter and commit serious indictable offence, larceny. The indictment offence is on or about 24 August 2018, at South Grafton in the State of New South Wales, did break and enter the dwelling house of AB and GB at [address omitted], and did commit a serious indictable offence therein, namely larceny, knowing that a person was in the place where the offence was committed. He pleaded not guilty to this offence and was found guilty by the jury. I convict him of this offence. The maximum penalty prescribed for this offence is 20 years imprisonment, with a standard non-parole period of five years.

In addition, he is to be sentenced for two other offences in respect of which he pleaded guilty at the earliest opportunity. Both of them were under the Early Appropriate Guilty Plea scheme. The first is sequence 3, break and enter dwelling with intent to commit serious indictable offence, s 113(1) of the Crimes Act. The maximum penalty for that offence is imprisonment for 10 years. The Court Attendance Notice is did break and enter the dwelling house, to wit, shed within the curtilage of the dwelling house/garage belonging to CD situate at [address omitted], with intent to commit a serious indictable offence therein, to wit, to steal there from the property of the said CD.

There is then a further offence contrary to s 111(2) of the Crimes Act, aggravated enter dwelling with intent, between 10.30pm on 12 July 2018 and 4.40am on 13 July 2018, that…

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 Gibson

Details

AGLC: R v Gibson [2019] NSWDC 923
Case: [2019] NSWDC 923
Decision Date: 15 November 2019

CaseChat Overview and Summary

The case of R v Gibson was heard in a court in Australia where the defendant was found guilty of several property offences. Gibson was convicted for entering a dwelling house with the intent to commit a serious indictable offence, breaking and entering a dwelling house and committing a serious indictable offence, and breaking and entering with intent to commit a serious indictable offence. The defendant's actions were in violation of sections 111(2), 112(2) and 113(1) of the Crimes Act 1900. The court was tasked with determining the appropriate sentence for Gibson's crimes, taking into account the aggravating factors and relevant considerations for sentencing.

The court identified several legal issues that needed to be addressed. These included the consideration of the aggravating factors related to the home of the victim or any other person, as well as the factors relevant to sentencing such as deterrence, both general and specific, and the need to consider multiple offences and aggregate sentences. The court also had to consider the principle of totality in relation to any existing offences that Gibson had committed. The primary objective of the court was to ensure that the sentence imposed was just and appropriate for the crimes committed by Gibson.

In determining the appropriate sentence, the court took into account the aggravating factors, including the fact that the offences were committed against the home of the victim. The court also considered the need for general and specific deterrence, as well as the need to address the multiple offences committed by Gibson. The court imposed an aggregate sentence of four years and eight months, with a non-parole period of two years and six months. This sentence took into account the totality principle in relation to any existing offences that Gibson had committed.

The court's decision in R v Gibson highlights the importance of considering aggravating factors, deterrence, and the need to address multiple offences when determining an appropriate sentence. The court's decision demonstrates the need to balance the interests of the victim, the community, and the offender when determining the appropriate sentence for property offences. The final orders of the court in this case were an aggregate sentence of four years and eight months, with a non-parole period of two years and six months.

Orders

Orders of the court

Aggregate sentence of four years eight months, with a non-parole period of two years six months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Gibson [2019] NSWDC 923
Decision date:	15 November 2019
Jurisdiction:	Criminal
Before:	Payne DCJ
Decision:	Aggregate sentence of four years eight months, with a non-parole period of two years six months
Catchwords:	SENTENCING – property offences – aggravated enter dwelling-house with intent to commit serious indictable offence, Crimes Act 1900 s 111(2) – aggravated break and enter and commit serious indictable offence, Crimes Act 1900 s 112(2) – break and enter with intent to commit serious indictable offence, Crimes Act 1900 s 113(1) SENTENCING – aggravating factors – home of victim or any other person SENTENCING – relevant factors on sentence – deterrence – general and specific deterrence – relevant factors on sentence – multiple offences – aggregate sentences – totality re existing offences -
Legislation Cited:	Crimes Act 1900, ss 111(2), 112(2), 113(1) Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Chung v R [2017] NSWCCA 48 R v Bennett [2014] NSWCCA 197
Category:	Sentence
Parties:	Regina (Crown) Damien Boyd Gibson (Offender)
Representation:	Counsel: C Day (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Aboriginal Legal Service (Offender)
File Number(s):	2018/261533, 2018/314503