R v Josef Regina - [2000] NSWCCA 100

CITATION: R v Regina [2000] NSWCCA 100

FILE NUMBER(S): CCA 60222/99

HEARING DATE(S): 20/03/00

JUDGMENT DATE:
20 March 1999

PARTIES :

Regina v Josef Richard Regina

JUDGMENT OF: Abadee J; James J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/51/0024

LOWER COURT JUDICIAL
OFFICER : Coleman DCJ

COUNSEL : R Burgess - Applicant
MC Marien - Crown

SOLICITORS: TA Murphy - Applicant
SE O'Connor - Crown

DECISION: Leave to appeal granted - appeal against sentence dismissed

IN THE COURT OF
CRIMINAL APPEAL

060222/99

ABADEE J
JAMES J

Monday 20 March 2000

REGINA (NSW) v JOSEF RICHARD REGINA
JUDGMENT

1   JAMES J: Joseph Richard Regina has applied for leave to appeal against a sentence imposed on him in the District Court on 22 April 1999 by his Honour Judge Coleman, after he had pleaded guilty to one charge of escaping from lawful custody, an offence under s 34 (1) of the Correctional Centres Act for which the maximum penalty is penal servitude for 10 years. Judge Coleman imposed a sentence of penal servitude for three years consisting of a minimum term of two years to date from 28 April 2001 and an additional term of one year.
2   The series of events leading up to the imposition of this sentence was somewhat involved.
3   On 14 April 1992 the applicant was sentenced in the Lismore District Court on two charges of break, entering and stealing, one charge of cultivating prohibited plants and one charge of supplying a prohibited drug. The applicant appealed against those sentences to the Court of Criminal Appeal.
4   On 2 March 1993 his appeal to the Court of Criminal Appeal was allowed and, in lieu of the sentences which had been imposed in the District Court, the applicant was sentenced on the two charges of break, entering and stealing to concurrent fixed terms of penal servitude of two years six months to date from 27 March 1991 and on the charges of cultivating prohibited plants and supplying a prohibited drug to concurrent sentences of penal servitude of four years two months, each consisting of a minimum term of two years six months commencing on 27 September 1993 and an additional term of one year eight months.
5   After the appeal had been determined, the applicant was transferred to the Grafton Correctional Centre. He gave evidence in the proceedings on sentence before Judge Coleman that in the Grafton Correctional Centre another prisoner with whom he was sharing a cell and with whom he had become friendly was seriously assaulted by other prisoners.
6   On or about 10 December 1993 the applicant was transferred to a minimum security correctional centre at Glen Innes. Before he was transferred there, the applicant signed an undertaking that if he was transferred to a minimum security correctional centre he would not escape or attempt to escape. The undertaking contained an acknowledgment by the applicant, that if he escaped or attempted to escape, he could be prosecuted and he would also…

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 Josef Regina

Details

AGLC: R v Josef Regina [2000] NSWCCA 100
Case: [2000] NSWCCA 100
Decision Date: 20 March 1999

CaseChat Overview and Summary

The case of R v Josef Regina involved an appeal by the applicant, Josef Richard Regina, against a sentence imposed on him by Judge Coleman in the District Court. Regina had pleaded guilty to the offence of escaping from lawful custody under s 34(1) of the Correctional Centres Act, for which the maximum penalty was penal servitude for 10 years. The District Court judge sentenced Regina to penal servitude for three years, with a minimum term of two years to commence from 28 April 2001 and an additional term of one year. The primary legal issues before the Court of Criminal Appeal were whether the sentencing judge erred in applying the decision in R v Thomson and whether the total sentence imposed was manifestly excessive. The Court of Criminal Appeal considered the reasoning of the sentencing judge, who had referred to the decisions in R v Thomson, R v Garget, and R v Ertl, and noted the changes in the law since Thomson was decided. The Court found that the sentencing judge had not erred in applying the decision in R v Thomson, as his remarks indicated familiarity with the relevant case law. The Court also found that the total sentence, including the minimum term, was not manifestly excessive, as the length of time Regina was at liberty after escaping and the circumstances of the escape were sufficient to remove it from the class of "unremarkable" escapes.

The Court of Criminal Appeal granted leave to appeal against the sentence but dismissed the appeal against the sentence itself. The reasoning of the Court was that the sentencing judge had not erred in applying the decision in R v Thomson and that the total sentence imposed, including the minimum term, was not manifestly excessive. The Court found that the length of time Regina was at liberty after escaping and the circumstances of the escape were sufficient to remove it from the class of "unremarkable" escapes. The orders of the court were that leave to appeal against sentence be granted, but the appeal against sentence be dismissed.

Orders