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R v House

R v House

Case [2005] NSWCCA 88 17 March 2005

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CITATION:
Regina v HOUSE [2005] NSWCCA 88

HEARING DATE(S): 17 March 2005

JUDGMENT DATE:

17 March 2005

JUDGMENT OF:
Tobias JA at 31, 33; Wood CJ at CL at 1; Buddin J at 32

DECISION:
Leave to appeal granted. Appeal dismissed.

CATCHWORDS:
Criminal law - appeal against sentence - plea of guilty - armed robbery - whether sentencing judge erred in finding aggravating factors - whether weight given by sentencing judge to community expectations and prevalence of armed robbery offences - whether sentence imposed unduly severe.

LEGISLATION CITED:

Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Application by the Attorney General Under s 37 (Sentencing Procedure) Act by the Attorney General for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under s 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303
R v Bloomfield NSWCCA 15 July 1998
R v Broxham NSWCCA 3 April 1986
R v Downie and Dandy [1998] 2 VR 517
R v H (1980) 3 A Crim R 53
R v Hayes (1983) 11 A Crim R 187
R v Henry [1999] 46 NSWLR 346
R v Perrett [1999] NSWCCA 115
R v Petrinovic NSWCCA 18 September 1990
R v Sharma (2002) 130 A Crim R 238
R v Spiero (1979) 22 SASR 543
R v Stefanovski NSWCCA 9 June 1994
R v Underhill 9 May 1986

PARTIES:
Regina
David Gary House

FILE NUMBER(S):
CCA 2004/3221

COUNSEL:
J Bennett SC (Crown)
M Ramage QC

SOLICITORS:
S Kavanagh (Crown)
Voros Lawyers (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/21/1093

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

- 9 -

2004/3221

TOBIAS JA
WOOD CJ at CL
BUDDIN J

Regina v David Gary HOUSE

Judgment

1 WOOD CJ at CL: The Applicant seeks leave to appeal against a sentence which was imposed upon him on 27 May 2004 by his Honour Sorby DCJ in the District Court following his plea of guilty to one count of armed robbery (s 97(1) Crimes Act). That plea was entered on the first day of his trial.

2 The sentence imposed was one of imprisonment for 4 years and 6 months with a non-parole period of 3 years, each backdated to 29 December 2002, that being the day on which he was first taken into custody. A discount of 15 percent was given for the utilitarian value of the plea, and special circumstances were found, referable to the Applicant’s need for continuation of his drug rehabilitation, resulting in a non-parole period being set that was two thirds of the head sentence.

3 The Applicant and co-offender entered the Cheesecake Shop at Emu Plains during the afternoon of 29 December 2002 armed with a tyre lever and a socket wrench. There were four persons present, Mr and Mrs Horley, Louise Mayley and Emma Harvey. They were initially ordered to go into the chiller area, but on…

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 House

Details

AGLC: R v House [2005] NSWCCA 88
Case: [2005] NSWCCA 88
Decision Date: 17 March 2005

CaseChat Overview and Summary

In the case of R v House, the appellant was convicted of armed robbery and sought to appeal the sentence imposed by the sentencing judge. The appellant pleaded guilty to the offence, which involved the use of a firearm during the commission of a robbery. The appeal was heard in the higher court, which assessed whether the sentencing judge had erred in identifying certain aggravating factors and the weight given to community expectations and the prevalence of armed robbery offences in determining the sentence.

The primary legal issues before the court were whether the sentencing judge had erred in identifying the aggravating factors present in the case, and whether the weight given to community expectations and the prevalence of armed robbery offences was appropriate. The appellant argued that the sentencing judge had failed to properly consider the mitigating factors and had overemphasised the aggravating factors, leading to an unduly severe sentence. The appellant also contended that the weight given to community expectations and the prevalence of armed robbery offences was disproportionate and had unduly influenced the sentence imposed.

The court examined the sentencing principles and the relevant aggravating and mitigating factors present in the case. It considered whether the sentencing judge had erred in identifying the aggravating factors and whether the weight given to community expectations and the prevalence of armed robbery offences was appropriate. The court found that the sentencing judge had not erred in identifying the aggravating factors, as they were supported by the evidence presented. Furthermore, the court held that the weight given to community expectations and the prevalence of armed robbery offences was appropriate, as it was necessary to ensure public safety and deter similar offences. The court ultimately concluded that the sentence imposed was not unduly severe and upheld the appeal.

The final orders of the court were to dismiss the appeal and uphold the sentence imposed by the sentencing judge. The court found that the sentencing judge had not erred in identifying the aggravating factors and that the weight given to community expectations and the prevalence of armed robbery offences was appropriate. The appellant's appeal was dismissed, and the original sentence remained in place.

Orders