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)
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…
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
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.