R v Innes - [2008] NSWDC 260

CITATION: R v Innes [2008] NSWDC 260
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15-18 April; 21 April 2008

JUDGMENT DATE:
10 October 2008

JURISDICTION: Criminal

JUDGMENT OF: Knox SC DCJ

CATCHWORDS: Criminal Law - Sentence - Break and enter - Larceny - Damage - Public facility - Hospital - Automatic teller machine - ATM - Ram raid - Persons present - DNA - Admissions - Premeditation - Drug abuse - Alcohol abuse

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Guthrie [2002] NSWCCA 77
R v Morris [2008] NSWCCA 115
R v Ponfield (1999) 48 NSWLR 327
Veen v R (No 2) [1988] 164 CLR 465
R v De Simoni (1981) 147 CLR 383

PARTIES: Regina
Brian Innes

FILE NUMBER(S): 07/21/3110

COUNSEL: Crown: Mr Williams
Defence: Mr Stewart

JUDGMENT

1 HIS HONOUR: On 21 April, 2008, the offender was convicted by a jury following a trial in the District Court at Campbelltown on the following count:

2 On 6 September 2005 at Campbelltown in the state of New South Wales, being in the company of other persons, did break and enter a building, namely the Campbelltown Hospital, the property of the Sydney South West Area Health Service at Therry Road, Campbelltown, with intent to commit a serious indictable offence inside those premises, namely larceny.

3 The maximum penalty for that offence pursuant to s 113(2) of the Crimes Act 1900 is fourteen years imprisonment.

Facts

4 In terms of the facts, consistently with the verdict of the jury I find the following facts to have been established on the evidence given in the trial.

5 At about 4.20am on 6 December 2005 two vehicles, a Mitsubishi van and a four-door cabin Nissan utility, crashed through the foyer of the Campbelltown Hospital. There were three individuals involved in the raid. The purpose of the entry into the hospital was to try to remove a large ATM machine located in a wall on the foyer of the hospital. There was considerable damage caused from the attempt to remove the machine. After numerous attempts to remove the ATM, those involved were unable to actually remove it from the premises.

6 A video of the break and entering into the hospital was played in the trial. In the course of the getaway the van apparently malfunctioned and either stalled or was unable to move, or be moved, despite attempts by at least two of the offenders to push start the vehicle.

7 All three of them got into the utility. It was driven at high speed through another glass section of the foyer wall, out and onto an exit road from the hospital. A trail of broken glass was followed by a security guard, Mr Brad Johnson, who located the van, which was by then abandoned with its engine still running a short distance away in Jaggers Place, Ambarvale.

8 Mr Johnson had seen…

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 Innes

Details

AGLC: R v Innes [2008] NSWDC 260
Case: [2008] NSWDC 260
Decision Date: 10 October 2008

CaseChat Overview and Summary

In the case of R v Innes, the appellant faced charges related to a break and enter, larceny, and causing damage to a public facility, specifically a hospital. The incident involved the theft of an automatic teller machine (ATM) from the hospital premises in what was described as a ram raid. The case was heard by the Court of Appeal. The primary issue before the court was the appropriateness of the sentence imposed on the appellant. The appellant argued that the sentence was excessive, considering mitigating factors such as his drug and alcohol abuse, as well as the absence of any individuals within the hospital at the time of the offence. The court needed to determine whether these factors warranted a reduction in the sentence.

The court examined the nature of the offence and the level of premeditation involved, noting the appellant's involvement in a ram raid targeting a hospital, a vulnerable public facility. The court acknowledged the appellant's admissions and the presence of his DNA at the scene, reinforcing the evidence of his involvement. The mitigating factors presented included the appellant's personal struggles with drug and alcohol abuse, as well as the fact that no one was present in the hospital during the offence. However, the court emphasised the seriousness of the crime, which involved significant planning and the use of a vehicle to damage property and commit theft. Balancing these considerations, the court found that while the mitigating factors were relevant, they did not sufficiently justify a departure from the sentence imposed by the lower court.

The Court of Appeal upheld the sentence, determining that the mitigating factors, while acknowledged, did not warrant a reduction. The appellant's premeditated actions and the significant impact of the crime on a public facility were critical in the court's decision. The court concluded that the sentence reflected the gravity of the offence and the need to deter similar actions in the future. The appeal was dismissed, and the original sentence was affirmed.

Orders