R v Jones - [2004] NSWCCA 432

CITATION: R v Jones [2004] NSWCCA 432

HEARING DATE(S): 1 December 2004

JUDGMENT DATE:
10 December 2004

JUDGMENT OF: Tobias JA at 1; Sully J at 48; Hoeben J at 49

DECISION: (1) Leave to appeal granted; (2) Appeal allowed and the sentence imposed by his Honour Judge Maguire on 5 August 2004 quashed; (3) In lieu thereof, the respondent is sentenced to a term of imprisonment of 3 years which is to be taken to have commenced on 10 January 2004 and which will expire on 9 January 2007 with a non-parole period of 2 years which is to be taken to have commenced on 10 January 2004 and which will expire on 9 January 2006, on which date the respondent shall be released on parole; (4) It shall be a condition of such parole that; (a) the respondent be subject to supervision prescribed by the regulations under the Crimes (Administration of Sentences) Act 1999 during the period specified by those regulations, and; (b) immediately upon release on parole the respondent is to enter into a full-time drug rehabilitation program approved by his supervising parole officer and to remain in such program for as long as that officer considers it appropriate.

CATCHWORDS: CRIMINAL LAW - Sentence - Crown Appeal - Robbery whilst armed - Offence committed when on parole - Offender charged and sentenced while serving sentence of imprisonment for other offences - Sentence concurrent with pre-existing sentence - Sentence backdated - Sentence already expired when imposed - Sentencing judge imposed sentence as though he was sentencing at same time as earlier offences - Manifest inadequacy - Inappropriate, due to nature and serious of offence, to sentence as though sentence were being imposed at same time as earlier sentences - Totality

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1900

CASES CITED: R v Henry & Ors (1999) 46 NSWLR 346
R v Pearce (1998) 194 CLR 610
R v Tran [1999] NSW CCA 109
R v Fernando [2002] NSW CCA 28
R v Vranic (NSW CCA 7 May 1991 unreported)
R v Cicekdag [2004] NSW CCA 357
Thompson (2000) 49 NSWLR 383
R v Kay [2004] NSWCCA 130
R v Cotter [2003] NSW CCA 273
R v KM [2004] NSW CCA 65
R v Hernando (2002) 136 A Crim R

PARTIES :
Regina
Derek Louis Jones

FILE NUMBER(S): CCA 2004/2247 CCAP

COUNSEL: A: P Miller
R: R Hulme SC

SOLICITORS: A: S Kavanagh
R: S O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3020

LOWER COURT
JUDICIAL OFFICER : Maguire DCJ

2004/2247

TOBIAS JA
SULLY J
HOEBEN J
Friday 10 December 2004

REGINA v DEREK LOUIS JONES

Judgment

1 TOBIAS JA: On 18 November 2003, the respondent was charged with one count of robbery whilst armed with an offensive weapon pursuant to s 97(1) of the Crimes Act 1900 and committed by him on 22 July 2001 when on parole (the subject offence). On 21 January 2004, he entered a plea of guilty to this charge…

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 Jones

Details

AGLC: R v Jones [2004] NSWCCA 432
Case: [2004] NSWCCA 432
Decision Date: 10 December 2004

CaseChat Overview and Summary

In the case of R v Jones, the appellant was convicted of committing an armed robbery while on parole. The appellant had previously been serving a sentence of imprisonment for other offences. At the time of the armed robbery, the appellant was charged and sentenced concurrently with his pre-existing sentence. The sentence was backdated to the date of the armed robbery. However, by the time the sentence was imposed, it had already expired. The Crown appealed the sentence, arguing it was manifestly inadequate.

The legal issues before the court were whether the sentence imposed was manifestly inadequate, and whether it was appropriate to consider the sentence as though it was being imposed concurrently with the earlier sentences. The court needed to determine whether the totality of the sentence, including the backdated sentence, was adequate and appropriate given the nature and seriousness of the offence committed.

The court found that the sentence imposed was manifestly inadequate. The court considered that it was not appropriate to sentence the appellant as though the sentence was being imposed at the same time as the earlier sentences. The court held that the nature and seriousness of the offence warranted a sentence that reflected the appellant's culpability and the need for deterrence and denunciation. The court noted that the sentence imposed did not adequately reflect the seriousness of the offence and the need to protect the community. The court also noted that the sentence had already expired by the time it was imposed, which further contributed to the manifest inadequacy of the sentence. The appeal was allowed, and the matter was remitted for resentencing.

Orders