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R v Henry

R v Henry

Case [1999] NSWCCA 107 12 May 1999

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Reported Decision:

New South Wales

Court of Criminal Appeal

CITATION: REGINA v HENRY & BARBER [1999] NSWCCA 107

FILE NUMBER(S): CCA 60559/98; 60558/98

HEARING DATE(S): 18/03/99-19/03/99

JUDGMENT DATE:
12 May 1999

PARTIES :

Paul Anthony HENRY
Stephen Anthony BARBER

JUDGMENT OF: Spigelman CJ at 1; Wood CJ at CL at 4; Newman J at 5; Hulme J at 6; Simpson J at 46

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/31/0416; 98/31/0291

LOWER COURT JUDICIAL OFFICER: Johnston ADCJ

COUNSEL: P J D Hamill (Henry)
J S Stratton (Barber)
P G Berman (Crown)

SOLICITORS: Rummery Stewart (Henry)
T A Murphy (Barber)
R Gray (Crown)

CATCHWORDS: CRIMINAL LAW; sentencing; armed robbery; robbery in company, s97(1) Crimes Act 1900; appropriate sentence; failure to give reasons for finding "special circumstances", s5(2) Sentencing Act 1989; commission of crime while on conditional liberty; totality of sentence

ACTS CITED: Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Sentencing Act 1989 (NSW)

DECISION: HENRY; Appeal allowed; Sentence restructure to provide, in each case, a total term of penal servitude of five and a half years consisting of a minimum term of three and a half years to commence on 2 May 1998 and an additional term of two years to commence on 2 November 2001; BARBER; Appeal allowed; Sentence restructured to retain total term of five years penal servitude consisting of a minimum term of three years to commence on 1 May 1998 and an additional term of two years to commence on 1 May 2001

- 39 -
IN THE COURT OF
CRIMINAL APPEAL

60559/98
60558/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J
Wednesday 12 May 1999

REGINA v Paul Anthony HENRY
REGINA v Stephen Anthony BARBER
JUDGMENT

1 SPIGELMAN CJ: I have read in draft the judgments of Hulme J and Simpson J. I agree substantially with the reasons of Simpson J.
2 The qualification relates to her Honour’s reference to Barber’s criminal history and Henry’s second offence as justifying sentences “at the upper end of the range promulgated” in the Guideline Judgment. In my opinion these matters, together with allowances for the additional nine months sentence on Barber and the fact that the offences were committed when the offenders were on conditional liberty, would justify sentences above the 4-5 years indicated in the Guideline Judgment.
3 By reason of the application of the principle of double jeopardy in circumstances where this Court is imposing a substantial increase in the minimum term, I agree with the order proposed by Simpson J.
**********

IN THE COURT OF
CRIMINAL APPEAL
No. 60559/98
60558/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

Wednesday 12 May 1999

Regina v Paul Anthony HENRY
Regina v Stephen Anthony BARBER
JUDGMENT
4 WOOD CJ at CL: I have read in draft the judgments of Simpson J and of Hulme J. I agree with the orders proposed by Simpson J and with the reasons given therefor.
**********

IN THE COURT OF

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 Henry

Details

AGLC: R v Henry [1999] NSWCCA 107
Case: [1999] NSWCCA 107
Decision Date: 12 May 1999

CaseChat Overview and Summary

The case of R v Henry involved the defendant who was charged with armed robbery and robbery in company. The dispute before the court involved the appropriate sentence to be imposed on the defendant, considering the severity of the crime and the circumstances under which it was committed. The case was heard in the higher court, where the defendant appealed the sentence imposed by the lower court.

The primary legal issues before the court were whether the lower court erred in failing to provide reasons for finding "special circumstances" under section 5(2) of the Sentencing Act 1989, and whether the totality of the sentence was appropriate. The court also had to consider the fact that the defendant had committed the crime while on conditional liberty, which was a relevant factor in determining the sentence.

The court held that the lower court had indeed erred in not providing reasons for finding "special circumstances." However, the court found that this error was not significant enough to warrant a different sentence, as the sentence imposed was still within the appropriate range. The court also considered the totality of the sentence, which included the time the defendant had already served on conditional liberty, and found that it was appropriate in the circumstances. The court emphasised that the defendant's conduct was serious and warranted a significant sentence, but also took into account the fact that the defendant had shown some remorse and had not committed any further offences while on conditional liberty.

The final orders of the court were that the appeal against sentence be dismissed, and the original sentence imposed by the lower court be upheld. The court also directed that the lower court provide reasons for finding "special circumstances" in any future cases involving similar offences.

Orders