R v Jarrett - [2000] NSWCCA 334

CITATION: R v Jarrett [2000] NSWCCA 334

FILE NUMBER(S): CCA 60721/1999

HEARING DATE(S): 09/08/2000

JUDGMENT DATE:
9 August 2000

PARTIES :

Regina v Elvis Aaron Sean Jarrett

JUDGMENT OF: James J at 1; Dowd J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/51/0038

LOWER COURT JUDICIAL
OFFICER : Christie DCJ

COUNSEL : R Burgess - Appellant
AM Blackmore - Crown

SOLICITORS: DJ Humphreys - Appellant
SE O'Connnor - Crown

DECISION: Leave to appeal granted - Appeal allowed

IN THE COURT OF
CRIMINAL APPEAL

60721/99

JAMES J
DOWD J

Wednesday 9 August 2000

REGINA v ELVIS AARON SEAN JARRETT

JUDGMENT

1   JAMES J: Elvis Aaron Sean Jarrett has applied for leave to appeal against a sentence imposed on him in the District Court on 19 November 1999 by his Honour Judge Christie, after he had pleaded guilty to one charge of being an accessory after the fact to armed robbery. His Honour sentenced the applicant to a term of penal servitude for four years, consisting of a minimum term of three years and an additional term of one year.
2   His Honour made the sentence commence from 21 February 1999, which was the date on which the applicant was arrested and taken into custody.
3   The principal offenders in the armed robbery were two persons named Austin and another person who was a minor at the time the offence was committed.
4   The armed robbery was committed on 4 February 1999 at a credit union in Bellingen. On that day the applicant drove the three principal offenders from Bowraville to Bellingen. At Bellingen the three principal offenders left the vehicle and committed the armed robbery at the credit union.
5   The objective facts of the armed robbery were serious. A real firearm was used, which was loaded, and a shot was deliberately fired from the firearm as the principal offenders entered the credit union.
6   While the armed robbery was being committed, the applicant waited in the vehicle. The applicant was aware that the others were considering committing a robbery but claimed that he himself was not a participant in any enterprise to commit a robbery.
7   After the robbery was committed, the principal offenders ran to the vehicle and got into it and the applicant drove off. The vehicle being driven by the applicant was pursued by a police vehicle. After a police chase of some duration, the applicant's vehicle collided with a tree and came to a stop. The two Austins and the applicant escaped but the minor was arrested. The applicant was arrested on 21 February 1999 and remained in custody until he was sentenced.
8   The sentencing judge was conscious that he was sentencing the applicant for the offence of being an accessory after the fact to armed robbery and not for the offence of armed robbery. However, on numerous occasions in the proceedings on sentence, both in remarks made on 4 November 1999 and in the remarks on sentence which were delivered 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 Jarrett

Details

AGLC: R v Jarrett [2000] NSWCCA 334
Case: [2000] NSWCCA 334
Decision Date: 9 August 2000

CaseChat Overview and Summary

Elvis Aaron Sean Jarrett applied for leave to appeal against his sentence imposed by the District Court, following his guilty plea to being an accessory after the fact to armed robbery. The District Court sentenced Jarrett to four years of penal servitude, with a minimum term of three years, for driving the principal offenders to the scene of an armed robbery and subsequently aiding their escape. The armed robbery involved the use of a loaded firearm and a shot being fired. The appellant argued that the District Court's sentencing was flawed due to an error in the maximum penalty applicable for being an accessory after the fact to armed robbery.

The legal issues before the Court of Criminal Appeal included whether the District Court's error regarding the maximum penalty constituted a miscarriage of justice that warranted re-sentencing and, if so, what appropriate sentence should be imposed. The Court had to determine whether the appellant should be sentenced for the more serious offence of armed robbery or for the lesser offence of being an accessory after the fact. The Court also had to consider the appropriate sentencing principles and factors, including the appellant's plea of guilty, his youth, and his aboriginality.

The Court of Criminal Appeal held that the District Court's error in stating the maximum penalty was fundamental and led to a misapplication of the sentencing discretion. Consequently, the Court quashed the original sentence and re-sentenced Jarrett. The Court noted the seriousness of the offence but also considered the appellant's plea of guilty and his subjective circumstances. The Court imposed a sentence of three years imprisonment with a non-parole period of two years, taking into account the principles applicable to sentencing aboriginal offenders. The Court granted leave to appeal and allowed the appeal, ordering the new sentence to commence from the date of the appellant's arrest.

Orders