R v Henry - [2004] NSWCCA 306

CITATION: Regina v Henry [2004] NSWCCA 306

HEARING DATE(S): 30 August 2004

JUDGMENT DATE:
30 August 2004

JUDGMENT OF: Grove J at 28, 30; Simpson J at 1; Shaw J at 29

DECISION: 1: count one: imprisonment for two years, commencing on 7 July 2003, with a non-parole period of twelve months, expiring on 6 July 2004; 1A: direct that the applicant be released on parole at the end of the non-parole period, that is on 6 July 2004; 2: count two (taking into account the Form 1 offences): imprisonment for three years, commencing on 7 July 2004, with a non-parole period of one and a half years, expiring on 6 January 2006; 2A: direct that the applicant be released on parole at the end of the non-parole period, that is on 6 January 2006.

CATCHWORDS: application for leave to appeal against severity of sentences - pleas of guilty - combination of two sets of offences and two sets of sentences - subjective circumstances - principle of totality - accumulation of sentences - special circumstances - delay in processing DNA evidence

LEGISLATION CITED: Crimes Act 1900, s112(1)
Crimes (Sentencing Procedure) Act 1999, Part 3 Division 3, s50(1), s44(3)

CASES CITED: R v Clark (1995) 78 A Crim R 226
R v Clissold (Ian Raymond) [2002] NSWCCA 356, unreported, 19 August 2002
R v Mohamed Hakem Hajjo NSWCCA, unreported, 31 August 1992
R v Simpson NSW CCA, unreported, 18 June 1992

PARTIES :
Crown - Respondent
Russell James Henry - Applicant

FILE NUMBER(S): CCA 2004/1907

COUNSEL: LMP Lamprati SC - Crown
M Austen - Applicant

SOLICITORS: S Kavanagh - Crown
Sydney Regional Aboriginal Legal Service - Applicant

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/41/0151; 03/41/0152

LOWER COURT
JUDICIAL OFFICER : Armitage DCJ

2004/1907
(60176/04)

GROVE J
SIMPSON J
SHAW J
Monday 30 August 2004

REGINA v Russell James HENRY

Judgment

1 SIMPSON J: This is an application for leave to appeal against the severity of sentences imposed upon the applicant in the District Court on 17 October 2003 following his pleas of guilty to an indictment containing two counts of break, enter and steal. The maximum sentence, pursuant to s112(1) of the Crimes Act 1900, in respect of each offence (having regard to the value of the property stolen), was imprisonment for 14 years. In relation to the second count the sentencing judge took into account, pursuant to Part 3 Division 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Act”), a further six offences, three of which were of break, enter and steal, and one each of being carried in or of driving a conveyance without the consent of the owner, and one of driving whilst under the influence of cannabis.

2 On the first count the applicant was sentenced to imprisonment for two years with a non-parole period of eighteen months, commencing on 1 July 2003. On the second count he was sentenced to imprisonment for three years with a non-parole period of two years and…

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 [2004] NSWCCA 306
Case: [2004] NSWCCA 306
Decision Date: 30 August 2004

CaseChat Overview and Summary

The matter before the court involved the applicant, Henry, who sought leave to appeal against the severity of the sentences imposed by the Supreme Court of New South Wales. Henry had entered pleas of guilty to multiple offences, resulting in two sets of sentences being imposed. The court was required to consider whether the sentences were excessively severe, taking into account the principle of totality and the special circumstances of the case, including the delay in processing DNA evidence. The applicant argued that the sentences were cumulative and should be reviewed in light of the unique circumstances, including the delay in obtaining DNA evidence which ultimately led to his convictions.

The primary legal issues before the court involved the application of the principle of totality in sentencing, the consideration of special circumstances, and the impact of the delay in processing DNA evidence on the sentencing process. The court had to determine whether the sentences were disproportionately severe when viewed cumulatively and whether the special circumstances, including the delay in DNA evidence processing, warranted a reduction in the sentences. The applicant argued that the sentences should be reconsidered to ensure they were just and proportionate, considering the unique circumstances of the case.

The court considered the principle of totality, which requires that the cumulative effect of multiple sentences be taken into account to prevent excessive punishment. The court also examined the special circumstances, including the delay in processing DNA evidence, which led to the applicant's convictions. The court acknowledged the importance of considering the impact of such delays on the sentencing process. Ultimately, the court determined that while the principle of totality and special circumstances warranted consideration, the sentences imposed were not excessively severe. The court concluded that the cumulative effect of the sentences, along with the special circumstances, had already been adequately considered by the original sentencing judge.

The court dismissed the application for leave to appeal against the severity of the sentences. The court found that the sentences, when viewed cumulatively and in light of the special circumstances, were not disproportionately severe. The court acknowledged the importance of the delay in processing DNA evidence but concluded that it did not warrant a reduction in the sentences imposed. The court's decision emphasized the need for a balanced approach to sentencing, taking into account both the principle of totality and any special circumstances, while ensuring that the sentences remain just and proportionate.

Orders