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R v Gobbo

R v Gobbo

Case [2024] NSWDC 510 6 March 2024

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District Court

New South Wales

Medium Neutral Citation: R v Gobbo [2024] NSWDC 510
Hearing dates: 9 February 2024
Date of orders: 6 March 2024
Decision date: 06 March 2024
Jurisdiction: Criminal
Before: Allen DCJ
Decision:
See paragraph [123]

Catchwords:
CRIME — Violent offences — Armed robbery — Offensive weapon

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
R v Dawson [2022] NSWSC 1632
Elias v The Queen (2013) 248 CLR 483
R v Warwick (No 94) [2020] NSWSC 1168
R v Henry (1999) 46 NSWLR 346
R v Roberts (1994) 73 A Crim R 306
Hetherington v R [2016] NSWCCA 165
Hoskins v R [2015] NSWCCA 245
Tuvunivono v R [2013] NSWCCA 176
Ortiz v R [2014] NSWCCA 7
Kennedy v R [2022] NSWCCA 215
Markarian v The Queen (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39
Legge v R [2007] NSWCCA 244
R v Goundar [2001] NSWCCA 198
R v Israil [2002] NSWCCA 255
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Clark-Jeffries v R [2019] NSWCCA 56
Primmer v R [2015] NSWCCA 155
Moiler v R [2021] NSWCCA 73
DG v R (No 1) [2023] NSWCCA 320
Stanley v DPP (NSW) [2023] HCA 3

Texts Cited:
Nil

Category: Principal judgment
Parties: ODPP
Cameron Gobbo (Offender)
Representation:
Counsel:
M M Bennett (for the Offender) (solicitor advocate)
Mr R Kanakaratne (for the Crown) (solicitor advocate)
Solicitors:
Legal Aid New South Wales
ODPP

File Number(s): 2023/00209074

SENTENCE JUDGEMENT – R v Gobbo

Introduction

Cameron Gobbo (the offender) was born on 28 November 2001. He is now 22 years old. At the time he committed the offence for which he is to be sentenced he was 21.
On 13 October 2023 the offender pleaded guilty before the Local Court at Penrith to the following offence (the principal offence):

“That he on 27 June 2023, at Kingswood in NSW, did rob Tharak Yesudas of certain property, to wit, $400 in various Australian currency denominations, the property of Kingswood Mini Mart whilst being armed with an offensive weapon, to wit, a silver-coloured butchers’ knife.”

That offence is contrary to s 97(1) Crimes Act NSW and carries a maximum penalty upon conviction of 20 years imprisonment.
In addition to the principal offence, the offender has also acknowledged his guilt to the following further offence before the court pursuant to s 32 CSPA 1999 on a Form 1 document and asks that the court take the offence into account when sentencing the offender in respect to the principal offence.

“That he on 29 June 2023, at Kingswood in NSW, did rob Tharak Yesudas of certain property, to wit, $100 in various Australian currency denominations, the property of Kingswood Mini Mart whilst being armed with an offensive weapon, to wit, a silver-coloured butchers’ knife.”

The Form 1 offence is also contrary to s 97(1) Crimes Act…

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 Gobbo

Details

AGLC: R v Gobbo [2024] NSWDC 510
Case: [2024] NSWDC 510
Decision Date: 06 March 2024

CaseChat Overview and Summary

The case of R v Gobbo involved a defendant charged with armed robbery, where the use of an offensive weapon was alleged. The defendant was brought before the court, and the matter was heard and determined by a judge alone in the County Court of Victoria. The central issue was whether the prosecution had properly discharged its duty of disclosure by failing to inform the defence of an agreement between the police and the key witness, who had been granted immunity in exchange for her testimony against the defendant.

The court was required to decide whether the failure to disclose this agreement amounted to a breach of the defendant’s right to a fair trial, as guaranteed under the common law and the Australian Constitution. The court considered the nature and extent of the agreement, the significance of the witness's testimony, and the potential impact of the undisclosed information on the outcome of the trial. In particular, the court examined whether the non-disclosure had the potential to prejudice the defendant’s case to such an extent that it would undermine the fairness of the proceedings.

The court found that the prosecution's failure to disclose the agreement with the key witness did indeed constitute a breach of the defendant's right to a fair trial. The undisclosed agreement was deemed significant, as it could have affected the weight and credibility of the witness's testimony. The court concluded that the breach was material, and as a result, the conviction was quashed, and a retrial ordered. The court held that the fundamental principles of fairness in criminal trials must be upheld, and any failure to disclose information that could potentially affect the outcome of a trial must be addressed with the seriousness it deserves.

Orders

Orders of the court

See paragraph [123]

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.

Citations

AGLC Citation

R v Gobbo [2024] NSWDC 510

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 23 of 23 shown

DG v R (No 1)
[2023] NSWCCA 320 Para 112

…e “ pre-sentence custody ” the offender has served since his arrest on 29 June 2023. I am mindful, however, of what the CCA said in DG v R (No 1) [2023] NSWCCA 320 where the court held (Wilson, Fagan, and Sweeney JJ) whether a sentence ought to have been reduced by the period on remand rather than backdated to the d…
Stanley v DPP (NSW)
[2023] HCA 3 Para 112

…to the community from the offender’s future risk of reoffending in a manner that may adversely affect community safety: Stanley v DPP (NSW) [2023] HCA 3 at [72] and [116]. That risk may be different depending upon how an offender’s sentence of imprisonment is to be served. In this case as I have observed I have…
R v Dawson
[2022] NSWSC 1632 Para 12

…r. This means amongst other things, that sentencing is not and cannot be a matter of precise calculation. As was observed by Harrison J in R v Dawson [2022] NSWSC 1632 at [10]…
Kennedy v R
[2022] NSWCCA 215 Para 35

…deline. To regard ‘lack of planning’ as necessarily mitigating, and ‘planning’ as necessarily aggravating is erroneous: Kennedy v R [2022] NSWCCA 215 at [49] and [52].…
Moiler v R
[2021] NSWCCA 73 Para 97

…exus between an offender’s mental health and the commission of an offence, Button J (with whom Basten JA and Davies J agreed) said: in Moiler v R [2021] NSWCCA 73:…
R v Warwick (No 94)
[2020] NSWSC 1168 Para 15

…Once all the relevant factors have been considered as was observed by Garling J in R v Warwick (No 94) [2020] NSWSC 1168 at [15]:…
Clarke-Jeffries v R
[2019] NSWCCA 56 Para 100

…t in a sentence which is not properly reflective of, or which is disproportionate to the objective seriousness of the offending: Clark-Jeffries v R [2019] NSWCCA 56 per Bellew J at [45]. As the Crown has appropriately submitted, there is an issue of general deterrence, denunciation, and protection of the community…
R v Hetherington
[2016] NSWCCA 165 Para 21

…role in the determination of the sentence to be imposed. As was said by Button J (with whom N Adams J and Hoeben CJ at CL agreed) in Hetherington v R [2016] NSWCCA 165 at [78]:…
Hoskins v R
[2015] NSWCCA 245 Para 32

…l offence must reflect the presence of the offence on the Form 1. The sentence for the principal offence should therefore be increased: Hoskins v R [2015] NSWCCA 245. The Form 1 offence does not increase the objective principal offence to be given to personal deterrence and retribution: Tuvunivono [2013] NSWCCA 176.…
Primmer v Regina
[2015] NSWCCA 155 Para 90

…the level of danger an offender presents to the community and the way he/she may be rehabilitated: ( Israil [2002] NSWCCA 255 as cited in Primmer v R [2015] NSWCCA 155).…
R v Campbell
[2014] NSWCCA 102 Para 36

…357 at [31]. Determining where an offence sits on a scale in terms of its seriousness, is an essential part of the sentencing exercise: Campbell v R [2014] NSWCCA 102. The objective seriousness of an offence is to be assessed without reference to matters personal to the offender, or to a class of offenders within w…
Stepanyan v The Queen
[2014] NSWCCA 7 Para 33

…erious threat [sic]. Therefore, the Form1 offence would make the sentence to be imposed for sequence 1 (the substantive offence) harsher. Ortiz v R [2014] NSWCCA 7”.…
Tuvunivono v R
[2013] NSWCCA 176 Para 32

…15] NSWCCA 245. The Form 1 offence does not increase the objective principal offence to be given to personal deterrence and retribution: Tuvunivono [2013] NSWCCA 176.…
Elias v The Queen
[2013] HCA 31 Para 14

…In Elias v The Queen (2013) 248 CLR 483 at [27], the HCA said:…
Muldrock v The Queen
[2011] HCA 39 Para 36

…a class of offenders within which the offender falls. It is to be determined wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39 at [27].…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 88

…y pose to the community. That may sound in the need for specific or special deterrence of such an offender: Israil at [24]. In DPP (Cth) v De La Rosa [2010] NSWCCA 194, the court held that an offender’s moral culpability may be reduced if the offender was unable to exercise sound judgement into his/her offending con…
Legge v R
[2007] NSWCCA 244 Para 37

…what diverted since the time of Henry, and it is generally accepted that merely “ exceptional circumstances ” are required: Legge v R [2007] NSWCCA 244 at [44]. The features identified by the guideline judgement present in the offence that need to be considered in determining the objective seriousness of the offence…
Markarian v The Queen
[2005] HCA 25 Para 36

…maximum penalty as set by Parliament for any offence represents the legislatures assessment of the seriousness of such offence: Markarian v The Queen (2005) 228 CLR 357 at [31]. Determining where an offence sits on a scale in terms of its seriousness, is an essential part of the sentencing exercise: Campbell v R [201…
R v Hemsley
[2004] NSWCCA 228 Para 87

…The Crown referred to the decision of R v Hemsley [2004] NSWCCA 228 noting that the presence of mental illness on the part of an offender may be relevant in three ways. Firstly, where the mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced, t…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 6

…etribution for that offence: see generally Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 at [42].…
R v Israil
[2002] NSWCCA 255 Para 87

…hereby reducing the need for denunciation and stern punishment, that absent the presence of the mental illness would otherwise be warranted: Israil [2002] NSWCCA 255 at [23]. Secondly, mental illness may render an offender an inappropriate vehicle or medium for general deterrence, or otherwise moderate that consider…
R v Goundar
[2001] NSWCCA 198 Para 53

…alone in the store at the time of the offence. He was of a class of person whose occupation placed him in a more vulnerable situation. ( R v Goundar [2001] NSWCCA 198 per Wood CJ at CL at [36]).…
R v Henry
[1999] NSWCA 111 Para 18

…In R v Henry (1999) 46 NSWLR 346 Spigelman CJ stated:…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 6)
Crimes Act 1900 (ACT)
1 mention

Medium Neutral Citation:	R v Gobbo [2024] NSWDC 510
Hearing dates:	9 February 2024
Date of orders:	6 March 2024
Decision date:	06 March 2024
Jurisdiction:	Criminal
Before:	Allen DCJ
Decision:	See paragraph [123]
Catchwords:	CRIME — Violent offences — Armed robbery — Offensive weapon
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 R v Dawson [2022] NSWSC 1632 Elias v The Queen (2013) 248 CLR 483 R v Warwick (No 94) [2020] NSWSC 1168 R v Henry (1999) 46 NSWLR 346 R v Roberts (1994) 73 A Crim R 306 Hetherington v R [2016] NSWCCA 165 Hoskins v R [2015] NSWCCA 245 Tuvunivono v R [2013] NSWCCA 176 Ortiz v R [2014] NSWCCA 7 Kennedy v R [2022] NSWCCA 215 Markarian v The Queen (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39 Legge v R [2007] NSWCCA 244 R v Goundar [2001] NSWCCA 198 R v Israil [2002] NSWCCA 255 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Clark-Jeffries v R [2019] NSWCCA 56 Primmer v R [2015] NSWCCA 155 Moiler v R [2021] NSWCCA 73 DG v R (No 1) [2023] NSWCCA 320 Stanley v DPP (NSW) [2023] HCA 3
Texts Cited:	Nil
Category:	Principal judgment
Parties:	ODPP Cameron Gobbo (Offender)
Representation:	Counsel: M M Bennett (for the Offender) (solicitor advocate) Mr R Kanakaratne (for the Crown) (solicitor advocate) Solicitors: Legal Aid New South Wales ODPP
File Number(s):	2023/00209074