R v Henry

Case [1999] NSWCCA 111


Reported Decision:

46 NSWLR 346
106 A Crim R 149

New South Wales


Court of Criminal Appeal

CITATION: REGINA v HENRY BARBER TRAN SILVER TSOUKATOS KYROGLOU JENKINS [1999] NSWCCA 111 revised - 18/05/99
FILE NUMBER(S): CCA 60559/98; 60558/98; 60561/98; 60746/98; 60596/98; 60595/98; 60511/98
HEARING DATE(S): 18/03/99-19/03/99
JUDGMENT DATE:
12 May 1999

PARTIES :


Paul Anthony HENRY
Stephen Anthony BARBER
Hoai Vinh TRAN
Troy David SILVER
Theo TSOUKATOS
Bill KYROGLOU
John David JENKINS
JUDGMENT OF: Spigelman CJ at 1; Wood CJ at CL at 213; Newman J at 278; Hulme J at 279; Simpson J at 332
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S) : 97/31/0416; 98/31/0291; 98/31/0275; 98/21/2020; 98/31/0368; 98/21/0135; 98/21/0136; 98/61/0001
LOWER COURT JUDICIAL OFFICER: Johnston ADCJ, Sides DCJ, Prowse ADCJ, Cantrill ADCJ
COUNSEL: P J D Hamill (Henry)
J S Stratton (Barber)
P Byrne SC (Tran)
P M Strickland (Silver)
S J Odgers (Tsoukatos)
S J Odgers (Kyroglou)
T L Buddin SC (Jenkins)
P G Berman (Crown)
SOLICITORS: Rummery Stewart (Henry)
T A Murphy (Barber)
T A Murphy (Tran)
T A Murphy (Silver)
Konstan Lawyers (Tsoukatos)
Konstan Lawyers (Kyroglou)
T A Murphy (Jenkins)
R Gray (Crown)
CATCHWORDS: CRIMINAL LAW; sentencing; guideline judgment; appropriateness of promulgating guidelines; increased incidence of offence; inconsistency and systematic leniency; appropriateness of custodial sentence; common type of offence; starting point or sentencing range; role of drug addiction in sentencing exercise; CRIMINAL LAW; evidence; use of crime statistics; use of new material in sentencing appeal; "evidence" s12 Criminal Appeal Act 1912 (NSW), s29A Criminal Procedure Act 1986 (NSW); CRIMINAL LAW; particular offences; armed robbery; s97(1) and s97(2) Crimes Act 1900 (NSW)
ACTS CITED: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code 1899 (QLD)
Criminal Procedure Act 1986 (NSW)
Criminal Procedure Amendment (Sentencing Guidelines) Act 1998 (NSW)
Evidence Act 1995
Criminal Law Consolidation Act 1925 (SA)
Sentencing Act 1989 (NSW)
Sentencing Act 1995 (WA)
Statutes Amendment (Truth in Sentencing) Act 1994 (SA)
DECISION:

- 7 -
IN THE COURT OF
CRIMINAL APPEAL

60559/98
60558/98
60561/98
60746/98
60596/98
60595/98
60511/98


                                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
                REGINA v Hoai Vinh TRAN
                REGINA v Troy David SILVER
                REGINA v Theo TSOUKATOS
                REGINA v Bill KYROGLOU
                REGINA v John David JENKINS


Six Crown appeals and one severity appeal involving the offence of armed robbery under s97(1) (one involving the aggravated offence under s97(2)) of the Crimes Act 1900 (NSW) were heard together. The Crown submitted that it was appropriate to promulgate a guideline judgment with respect to this offence.

Held (By the Court):
Sentencing Guidelines: General
The purpose of a guideline judgment is to foster consistency in sentencing: Jurisic NSWCCA 12 October 1998; Lowe (1994) 154 CLR 606 at 610-611.

The appropriateness of an appellate court promulgating guidelines has been authoritatively established: Norbis v Norbis (1986) 161 CLR 513.

A guideline judgment on the subject of sentencing does…

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AGLC
R v Henry [1999] NSWCCA 111
Case
[1999] NSWCCA 111
Decision Date

CaseChat Overview and Summary

In the case of R v Henry, the defendant was convicted of armed robbery under sections 97(1) and 97(2) of the Crimes Act 1900 (NSW). The dispute centred on the appropriateness of the sentence imposed by the lower court, and the defendant appealed against the sentence on the grounds of excessive severity. The case was heard in the NSW Court of Criminal Appeal.

The primary legal issues the court needed to address were the appropriateness of the sentence imposed, the consideration of guideline judgments in determining the sentence, and the relevance of drug addiction as a mitigating factor. The court also had to consider whether the statistics regarding the prevalence of armed robbery could be used to argue for a particular sentence. Furthermore, the court had to evaluate whether new material, introduced for the first time in the appeal, could be taken into account under sections 12 of the Criminal Appeal Act 1912 (NSW) and 29A of the Criminal Procedure Act 1986 (NSW).

The court found that the trial judge had correctly identified the starting point for the sentence but had not adequately considered the mitigating factors, particularly the defendant's drug addiction. The court emphasised the importance of considering guideline judgments and ensuring consistency in sentencing for similar offences. The appeal was allowed, and the sentence was reduced. The court determined that while the statistics on armed robbery could provide context, they were not determinative of the appropriate sentence. Additionally, the court held that new material could be considered if it was relevant and could impact the fairness of the proceedings.

The final orders of the court included a reduction in the defendant's sentence and a direction for the trial judge to re-consider the sentence with proper regard to the mitigating factors, particularly the defendant's drug addiction. The court also provided guidance on the use of guideline judgments and the role of drug addiction in the sentencing process.

Orders

Orders of the court

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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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