Spigelman CJ at 1, 33; Simpson J at 31; Blanch AJ at 32
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S) :
01/21/0207
LOWER COURT JUDICIAL OFFICER :
Tupman DCJ
COUNSEL :
G I O Rowling (Crown) G D Wendler (Respondent)
SOLICITORS:
S E O'Connor (Crown) Van Houten Solicitors (Respondent)
CATCHWORDS:
CRIMINAL LAW - Crown appeal against leniency of sentence - armed robbery - where blood-filled syringe produced - CRIMINAL LAW - Crown appeal against leniency of sentence - armed robbery - consideration of mental illness of offender.
1 SPIGELMAN CJ: This is a Crown appeal against the alleged inadequacy of a sentence imposed by her Honour Tupman DCJ. The Respondent pleaded guilty to one count of robbery armed with an offensive weapon, namely a blood-filled syringe, contrary to s97(1) of the Crimes Act 1900, and a second count of attempted armed robbery with an offensive weapon, namely a mock rifle, contrary to s344A of the Crimes Act 1900. Two additional charges were asked to be taken into account on a Form 1, namely, demanding of money with menaces and another armed robbery.
2 The relevant events occurred over a short period of time. The first count on the indictment, being the armed robbery, occurred at about 12.30pm on 4 February 2001. The Respondent entered a shop in Ashbury operated by Meiya Gao and her husband Ping Li. The Respondent produced a syringe filled with blood and demanded money. Ms Gao threw an envelope containing $150 at the Respondent and the Respondent left with the money. After the offence, Ms Gao placed a length of aluminium rod behind the counter of the shop.
3 The first offence to be taken into account on the Form 1 took place on the following day, that is 5 February 2001. The Respondent again entered the shop of Ms Gao and demanded money. She hit the counter several times with the aluminium rod and refused to hand over money to the Respondent, who left the shop.
4 The second offence on the indictment, namely the attempted armed robbery, occurred on 12 February 2001. While a co-offender stood by the doorway, the Respondent again entered the shop of…
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 Israil [2002] NSWCCA 255
Case
[2002] NSWCCA 255
Decision Date
CaseChat Overview and Summary
The appellant, Mr. Israil, was convicted of armed robbery and sentenced to a term of imprisonment. The Crown has appealed the leniency of the sentence, arguing that the court did not adequately consider the gravity of the offence and the impact on the victims. The appeal was heard in the court of criminal appeal.
The legal issues for the court to decide were whether the original sentence was manifestly inadequate, and if so, whether the mental illness of the offender should have been considered in determining the sentence. The court needed to assess whether the original sentencing judge failed to properly consider the seriousness of the armed robbery and the impact on the victims. Additionally, the court had to determine if the offender's mental illness was a relevant factor in sentencing.
The court found that the original sentence was indeed manifestly inadequate. The armed robbery was a serious offence that involved the use of a weapon and caused significant distress to the victims. The court also held that the original sentencing judge should have considered the mental illness of the offender as a mitigating factor. However, the court determined that even with the mental illness taken into account, the sentence should still have been more severe. The appeal was allowed, and a new sentence was imposed by the court.