R v GREEN - [2022] NSWDC 270

District Court

New South Wales

Medium Neutral Citation: R v GREEN [2022] NSWDC 270
Hearing dates: 30 May 2022
Date of orders: 18 July 2022
Decision date: 18 July 2022
Jurisdiction: Criminal
Before: Lerve DCJ
Decision:
Sentenced to an aggregate sentence of 5y 6mo with non parole period of 3yr 4mo.

Catchwords:
CRIME - aggravated break enter and steal - multiple counts - co-offender - parity - prior convictions -

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

Cases Cited:
Bugmy v The Queen [2013] HCA 37
Clifford [2008] NSWCCA 190
French [2010] NSWCCA 24
Harris v R [2007] NSWCCA 130
Mbele v R [2021] NSWCCA 182
Merrin v R [20007] NSWCCA 255
The Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 reported (2002) 56 NSWLR 146
Toller v R [2021] NSWCCA 204
Valentine v R [2020] NSWCCA 116

Category: Sentence
Parties: Regina
Harley Shane Peter GREEN
Representation:
Counsel:
Mr T Jackson for the Offender
Solicitors:
Ms Wojcik for the Director of Public Prosecutions

File Number(s): 2021/46741, 2020/356390, 2020/300359
Publication restriction: No

REMARKS ON SENTENCE

The offender was committed for sentence from the Wagga Wagga Local Court on 27 October 2021 in respect of four substantive matters. Attaching to each of those substantive matters is a Form 1 document containing a number of charges. The four substantive charges are, using the same order as they appear in the Crown tender:

H77739128 - sequence 13: Aggravated Break and Enter with Intent to Steal (Fosters joinery)

H77739128 - sequence 7: Aggravated Break and Enter with intent to steal (Planet Power)

H76463356 - sequence 2: Aggravated Break Enter and Steal (Flame Grilled Chicken)

H 77739128 - sequence 9: Aggravated Break Enter and Steal (Boleek Jewellers)

Attaching to H77739128 Sequence 13 is a Form 1 on which there are three charges, namely:

Sequence 2:   Aggravated Break Enter with Intent to Steal (relating to Blarney Stoneworks)
Sequence 3:   Destroy/Damage Property
Sequence 4:   Destroy/Damage Property

Attaching to H77739128 Sequence 7 is a Form 1 on which there are two further charges, namely:

Sequence 6: Attempt Aggravated Break Enter with Intent to Steal (relating to Bryant Engineering)
Sequence 8: Aggravated Break and Enter with Intent to Steal (relating to Southern Cross Contractors)

Attaching to H7646336 Sequence 2 is a Form 1 document containing two further charges, namely:

Sequence 3: Break Enter and Steal (relating to Kitson Property)
Sequence 1: Attempted Break and Enter with Intent to Steal (relating to Flirt Adult Store)

Attaching to H77739128 Sequence 9 is a Form 1 document on which there are four further charges, namely:

Sequence 5:   Larceny (relating to the stealing of a laptop)
Sequence 10:   Aggravated Break Enter and Steal (relating to S & E Hair and Beauty)
Sequence 11:   Aggravated Break Enter and Steal (relating to Skins Barber)
Sequence 14:   Aggravated Break Enter and Steal (relating to Lun Massage)

The maximum penalty for each of the charges of aggravated Break enter with intent to steal is 14…

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 GREEN

Details

AGLC: R v GREEN [2022] NSWDC 270
Case: [2022] NSWDC 270
Decision Date: 18 July 2022

CaseChat Overview and Summary

The matter of R v Green involved the defendant, Green, who was charged with multiple counts of aggravated break and enter and steal. The case was heard in the relevant Australian court. Green's co-offender, who was not named in the summary, was also involved in the offences. The primary dispute in this case centred around the severity of the crimes committed and the appropriate sentencing, taking into account Green's prior criminal history.

The court was required to determine the appropriate legal framework for sentencing an offender who had committed multiple aggravated break and enter and steal offences. Furthermore, the court had to consider the principle of parity, which ensures that co-offenders receive similar sentences, and assess the impact of Green's prior convictions on the overall sentence.

In delivering the judgment, the court held that the crimes committed were of significant gravity, warranting a severe penalty. The court also recognised the need to ensure parity with Green's co-offender. In light of these considerations, along with Green's prior criminal history, the court imposed an aggregate sentence of five years and six months imprisonment, with a non-parole period of three years and four months.

The court's decision was based on a careful assessment of the severity of the crimes, the need for parity with the co-offender, and the impact of Green's prior criminal history. The final orders of the court reflect the court's determination of an appropriate sentence, taking into account all relevant factors.

Orders

Orders of the court

Sentenced to an aggregate sentence of 5y 6mo with non parole period of 3yr 4mo.

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 GREEN [2022] NSWDC 270
Hearing dates:	30 May 2022
Date of orders:	18 July 2022
Decision date:	18 July 2022
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced to an aggregate sentence of 5y 6mo with non parole period of 3yr 4mo.
Catchwords:	CRIME - aggravated break enter and steal - multiple counts - co-offender - parity - prior convictions -
Legislation Cited:	Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1999
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Clifford [2008] NSWCCA 190 French [2010] NSWCCA 24 Harris v R [2007] NSWCCA 130 Mbele v R [2021] NSWCCA 182 Merrin v R [20007] NSWCCA 255 The Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 reported (2002) 56 NSWLR 146 Toller v R [2021] NSWCCA 204 Valentine v R [2020] NSWCCA 116
Category:	Sentence
Parties:	Regina Harley Shane Peter GREEN
Representation:	Counsel: Mr T Jackson for the Offender Solicitors: Ms Wojcik for the Director of Public Prosecutions
File Number(s):	2021/46741, 2020/356390, 2020/300359
Publication restriction:	No