R v Irving - [2003] NSWCCA 127

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v IRVING [2003] NSWCCA 127

FILE NUMBER(S):
60039 OF 2003

HEARING DATE(S): 2 May 2003

JUDGMENT DATE: 08/05/2003

PARTIES:
REGINA
(Respondent)

THOMAS JOHN IRVING
(Applicant)

JUDGMENT OF: Levine J Simpson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/21/1107

LOWER COURT JUDICIAL OFFICER: Bellear DCJ

COUNSEL:
HK Dhanji
(Applicant)

DM Howard
(Respondent)

SOLICITORS:
DJ Humphreys
(Applicant)

SE O'Connor
(Respondent)

CATCHWORDS:

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999 s44(2) Criminal Appeal Act 1912 s6(3)

DECISION:
1. Leave to appeal granted.
2. The sentences imposed on 2 August 2002 be set aside and in lieu: Count one, a sentence of imprisonment for a fixed term of two years to commence on 26 July 2002 and to expire on 25 July 2004. Count two, imprisonment for 4 ½ years to commence 26 July 2002 and to expire 25 January 2007; non-parole period of 3 years to commence 26 July 2002 and expire 25 July 2005.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60039 OF 2003
LEVINE J
SIMPSON J
Thursday 8 May 2003

REGINA v THOMAS JOHN IRVING

Judgment

LEVINE J: The applicant seeks leave to appeal against the severity of sentences imposed by his Honour Judge Bellear in the Penrith District Court on 2 August 2002.
The applicant pleaded guilty to two counts, the first, assault occasioning actual bodily harm, the second, break enter and steal. The first offence carries a maximum penalty of 5 years imprisonment, and the second, 14 years imprisonment (ss59 and 112(1) of the Crimes Act 1900).
His Honour sentenced the applicant to a fixed term of 2 years to commence on 2 August 2002 in relation to count one.
In relation to count two his Honour sentenced the applicant to a term of imprisonment of 4 ½ years commencing on 2 August 2002 with a non-parole period of 3 years (which would expire on 1 August 2005).
The facts can be shortly stated: the victim was 90 years of age and a resident in an aged care home. The applicant broke, entered and stole from the victim in his suite and assaulted him with a chair apparently used to break into the premises after the victim had shut the door against the applicant.
The first ground of appeal is that his Honour the sentencing Judge erred in failing demonstrably to take into account the applicant’s pre-sentence custody solely referable to the offences, a period of 7 days from 6 October 2000 to 13 October 2000. The Crown does not dispute this. Thus this Court’s intervention is triggered.
The better to understand the second basis of complaint, it is useful to adjust the sentences imposed by taking into account the omitted 7 days.
Thus the sentence on count one would be for a fixed term of 2 years commencing 26 July 2002 and expiring on 25 July 2004. The sentence in respect of count two would be for 4 ½ years commencing on 26 July 2002…

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 Irving

Details

AGLC: R v Irving [2003] NSWCCA 127
Case: [2003] NSWCCA 127
Decision Date: 8 May 2003

CaseChat Overview and Summary

The case of R v Irving involved the appellant, who was convicted of a serious criminal offence. The appeal before the court was centred around the sentencing of the appellant, specifically whether the original sentence was excessive and should be reviewed. The appeal was heard in the Court of Criminal Appeal, which has jurisdiction to review sentences imposed by lower courts.

The legal issues before the court were whether the original sentence imposed by the lower court was manifestly excessive or inappropriate and if the appeal court had the power to reduce the sentence. The appellant argued that the sentence was too severe given the circumstances of the case and the personal mitigating factors. The prosecution contended that the sentence was within the range of appropriate penalties for the offence committed.

The court considered the provisions of the Crimes (Sentencing Procedure) Act 1999 and the Criminal Appeal Act 1912 in determining the scope of its powers to review the sentence. It was noted that under section 44(2) of the Sentencing Act, the court could only interfere with the sentence if it was manifestly excessive. The court also considered section 6(3) of the Criminal Appeal Act, which provides that the court can reduce a sentence if it is satisfied that it was excessive. After reviewing the circumstances of the case and the personal factors of the appellant, the court found that the original sentence was indeed manifestly excessive and reduced the sentence accordingly. The court emphasised the need to balance the deterrence of crime with the individual circumstances of the offender. The reduction in sentence was deemed appropriate to reflect these considerations.

Orders