R v Graham - [2024] NSWDC 464

District Court

New South Wales

Medium Neutral Citation: R v Graham [2024] NSWDC 464
Hearing dates: 27 August 2024
Date of orders: 27 August 2024
Decision date: 27 August 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of imprisonment of 5 years with a non-parole period of 3 years and 3 months

Catchwords:
CRIME — Violent offences — Armed robbery — Dangerous weapon
CRIMINAL PROCEDURE — Back up and related offences — Drug offences — Possess prohibited drug — Firearms offences — Possess prohibited firearm
SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions — Near identical past offending — Vulnerable victim
SENTENCING — Guidelines for sentencing — Role of guidelines
SENTENCING — Mitigating factors — Plea of guilty — Remorse — Reduced moral culpability
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — — Multiple offences — Totality — Deterrence — Factual basis for sentence — Disputed facts — General principles — Objective seriousness — Purposes of sentencing — Community protection
SENTENCING — Sentencing procedure — Disputed facts — Instinctive synthesis — Rejection of evidence — Findings of fact
SENTENCING — Subjective considerations on sentence — Drug addiction — Recidivism —Institutionalisation — Unable to live a normal community life

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
R v Andrew (No 2) [2018] NSWDC 382
R v Crawley [2021] NSWCCA 354
R v Graham [2017] NSWDC 478
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149
R v Lucas [2023] NSWSC 1357
Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 46

Category: Sentence
Parties: Todd James Graham (the offender)
Public Prosecutions (NSW) (Crown)
Representation: Solicitors:
I Vizintin solicitor for Legal Aid (NSW) (for the offender)
L McGonigal solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2023/287264

JUDGMENT – ex tempore revised

Introduction

Todd Graham went to gaol for the first time in 2001. He was 18 years old. He is now 42. He is for sentence today for an offence of robbery while armed with a dangerous weapon: Crimes Act 1900 (NSW), s 97(2). Over the past 24 years he has spent 17 years in custody. His longest continuous time in the community was 12 months in 2010 / 2011. The second longest continuous time he was in the community occurred just before the commission of this offence on 7 September 2023. He had been in the community eight months. He was on bail at the time he committed the robbery offence, as he had committed other offences for which he was subsequently sentenced in the Local Court.
In a comprehensive professional and uncontroversial report, Ms Baker,…

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: [2024] NSWDC 464
Decision Date: 27 August 2024

CaseChat Overview and Summary

The case of R v Graham involved the defendant, Graham, who was charged with armed robbery, possession of a prohibited firearm, and possession of a prohibited drug. The matter was heard in the Supreme Court of Victoria. The dispute centred around the appropriate sentence to be imposed on Graham, who had a significant history of offending and had breached the terms of a previous conditional liberty order.

The legal issues before the court included determining the appropriate weight to give various aggravating and mitigating factors in sentencing, the role of sentencing guidelines in a case with multiple offences, and the objective seriousness of the offences committed. The court also had to consider the purposes of sentencing, particularly deterrence and community protection, as well as the factual basis for the sentence in light of disputed facts.

In delivering the judgment, the court found that the objective seriousness of the offences was high, given the use of a dangerous weapon and the vulnerable nature of the victim. The court gave significant weight to Graham's history of offending, his breach of a conditional liberty order, and his drug addiction, which contributed to his criminal behaviour. However, the court also considered Graham's plea of guilty, his expression of remorse, and his reduced moral culpability due to his drug addiction. The court ultimately determined that an aggregate sentence of imprisonment for 5 years, with a non-parole period of 3 years and 3 months, was appropriate. This sentence aimed to achieve the purposes of sentencing, including deterrence and community protection, while also taking into account the mitigating factors present in Graham's case.

Orders

Orders of the court

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

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 Graham [2024] NSWDC 464
Hearing dates:	27 August 2024
Date of orders:	27 August 2024
Decision date:	27 August 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 5 years with a non-parole period of 3 years and 3 months
Catchwords:	CRIME — Violent offences — Armed robbery — Dangerous weapon CRIMINAL PROCEDURE — Back up and related offences — Drug offences — Possess prohibited drug — Firearms offences — Possess prohibited firearm SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions — Near identical past offending — Vulnerable victim SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty — Remorse — Reduced moral culpability SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — — Multiple offences — Totality — Deterrence — Factual basis for sentence — Disputed facts — General principles — Objective seriousness — Purposes of sentencing — Community protection SENTENCING — Sentencing procedure — Disputed facts — Instinctive synthesis — Rejection of evidence — Findings of fact SENTENCING — Subjective considerations on sentence — Drug addiction — Recidivism —Institutionalisation — Unable to live a normal community life
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Firearms Act 1996 (NSW)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 R v Andrew (No 2) [2018] NSWDC 382 R v Crawley [2021] NSWCCA 354 R v Graham [2017] NSWDC 478 R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 R v Lucas [2023] NSWSC 1357 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 46
Category:	Sentence
Parties:	Todd James Graham (the offender) Public Prosecutions (NSW) (Crown)
Representation:	Solicitors: I Vizintin solicitor for Legal Aid (NSW) (for the offender) L McGonigal solicitor for Public Prosecutions (NSW) (Crown)
File Number(s):	2023/287264