R v Gowans - [2024] NSWDC 482

District Court

New South Wales

Medium Neutral Citation: R v Gowans [2024] NSWDC 482
Hearing dates: 29 August 2024
Date of orders: 29 August 2024
Decision date: 29 August 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment of 5 years 2 months with a non-parole period of 3 years

Catchwords:
CRIME — Property offences — Break, enter, in company, steal — Circumstances of aggravation — Take and drive a conveyance — Larceny
CRIME — Violent offences — Robbery in company
SENTENCING — Aggravating factors — Breach of conditional liberty — In company — Record of previous convictions
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — Plea of guilty — Remorse
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Co-offenders — Form 1 offences — Moral culpability — Multiple offences — Accumulation, concurrency and totality — What is a crushing sentence — Objective seriousness — Purposes of sentencing
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Intoxication — Mental illness and disorders — Risk of institutionalisation — Traumatic and abusive childhood — Disadvantaged childhood

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

Cases Cited:
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Grube v R [2005] NSWCCA 140
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346

Texts Cited:
“Impacts of Imprisonment and Remand in Custody” (2022) The Bugmy Bar Book Project

Category: Sentence
Parties: Nathaniel Gowans (the offender)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
R McMahon (for the accused)
Solicitors:
Legal Aid (NSW) (for the offender)
N Verghese solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2023/94147

JUDGMENT – ex tempore revised

Introduction

Nathaniel Gowans is no longer a young man. He was born in 1983. He has committed a number of offences against members of the community. He has been to gaol for some of those crimes.
On 18 March 2023 he committed a series of serious offences. They represent an escalation in his criminal activity. He told report writers that he had been drinking alcohol to excess that day. Drinking alcohol might, in part, explain why he did what he did, but it does not, and cannot, excuse what he did. In fact, it made him more dangerous, as he became more reckless under the influence of alcohol.
So serious were the offences individually and cumulatively that an aggregate sentence of some years imprisonment must be imposed upon him. That sentence must properly reflect the harm he did to the community and his individual victims. That sentence must also properly reflect the person for sentence. There are a significant number…

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 Gowans

Details

AGLC: R v Gowans [2024] NSWDC 482
Case: [2024] NSWDC 482
Decision Date: 29 August 2024

CaseChat Overview and Summary

The case of R v Gowans was heard by the Court of Appeal, where the appellant, a man with a significant criminal history, appealed against his sentence for multiple offences. The appellant was found guilty of break and enter, steal, robbery in company, and taking and driving a conveyance. The appeal centred on the severity of the sentence imposed, arguing it was excessive. The legal issues the court had to determine involved whether the trial judge had correctly applied the principles of sentencing and considered all relevant mitigating and aggravating factors.

The court examined the trial judge's application of the principles of sentencing, particularly focusing on the appellant's criminal history, the circumstances of the offences, and the need for deterrence and denunciation. The court held that the trial judge had considered all relevant factors, including the appellant's previous convictions, breach of conditional liberty, and the circumstances of the offences. The court found that the sentence was not manifestly excessive and that the trial judge had appropriately balanced the objectives of sentencing.

In reaching its decision, the court noted that the trial judge had correctly identified the appellant's extensive criminal history as an aggravating factor. The court also acknowledged the trial judge's consideration of the appellant's plea of guilty and expressions of remorse as mitigating factors. The court found that the trial judge had exercised sound discretion in determining the appropriate sentence. The appeal was dismissed, and the original sentence was upheld.

The court's final order was to affirm the aggregate sentence of imprisonment of five years and two months, with a non-parole period of three years. The court confirmed that the sentence was appropriate in all the circumstances, taking into account the appellant's criminal history, the nature of the offences, and the need to uphold the principles of justice, deterrence, and rehabilitation.

Orders

Orders of the court

Aggregate sentence of imprisonment of 5 years 2 months with a non-parole period of 3 years

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 Gowans [2024] NSWDC 482
Hearing dates:	29 August 2024
Date of orders:	29 August 2024
Decision date:	29 August 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 5 years 2 months with a non-parole period of 3 years
Catchwords:	CRIME — Property offences — Break, enter, in company, steal — Circumstances of aggravation — Take and drive a conveyance — Larceny CRIME — Violent offences — Robbery in company SENTENCING — Aggravating factors — Breach of conditional liberty — In company — Record of previous convictions SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Form 1 offences — Moral culpability — Multiple offences — Accumulation, concurrency and totality — What is a crushing sentence — Objective seriousness — Purposes of sentencing SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Intoxication — Mental illness and disorders — Risk of institutionalisation — Traumatic and abusive childhood — Disadvantaged childhood
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 Grube v R [2005] NSWCCA 140 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
Texts Cited:	“Impacts of Imprisonment and Remand in Custody” (2022) The Bugmy Bar Book Project
Category:	Sentence
Parties:	Nathaniel Gowans (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: R McMahon (for the accused) Solicitors: Legal Aid (NSW) (for the offender) N Verghese solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2023/94147