R v King - [2003] NSWCCA 352

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v King [2003] NSWCCA 352

FILE NUMBER(S):
60218/03

HEARING DATE(S): Friday 21 November 2003

JUDGMENT DATE: 21/11/2003

PARTIES:
Regina v David Scott King

JUDGMENT OF: Handley JA Grove J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1059, 02/21/1254

LOWER COURT JUDICIAL OFFICER: Payne DCJ

COUNSEL:
D. Frearson (Crown)/Applicant)
A. Cook (Respondent)

SOLICITORS:
C.K. Smith (Crown)
S. O'Connor (Respondent)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SENTENCE
MANIFEST INADEQUACY
CROWN APPEAL
AGGRAVATION
OFFENDER UNLAWFULLY AT LARGE WHEN OFFENDING
MULTIPLE OFFENCES
VALUABLE TOTAL OF PROPERTY UNRECOVERED
PARITY
CO-OFFENDERS DEALT WITH AT YOUTH DRUG COURT
COMMENT ON PURPOSES OF REMARKS ON SENTENCE

LEGISLATION CITED:

DECISION:
CROWN APPEAL ALLOWED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60218/03
HANDLEY JA
GROVE J
ADAMS J
Friday 21 November 2003

REGINA v DAVID SCOTT KING

Judgment

GROVE J: This is a Crown appeal asserting the inadequacy of sentence imposed by Payne DCJ in the Penrith District Court on 29 May 2003. The respondent was sentenced on five principal charges to which he had previously pleaded guilty before a magistrate and had been committed for sentence.
Her Honour also took into account two series of offences on respective Forms 1. Without detailing the structure of the individual sentences, the effective consequence was a head sentence of three years imprisonment with a non-parole period of one year and nine months.
The respondent was born on 11 November 1983. He had a significant, substantially juvenile, prior record. Among entries on the record were findings of guilty for two charges of robbery whilst armed in respect of which, in April 1996, without conviction, the respondent was subjected to a control order for a total term of five months.
On 19 March 1997 he appeared in the Sydney District Court and was convicted on two counts of assault with intent to rob and sentenced to a minimum term of twelve months and sixteen days, together with an additional term of one year eleven months and twelve days, the custodial portion of which was to be served in a juvenile justice centre.
On 15 December 2000 the respondent again appeared before a Children’s Court on five counts of robbery whilst armed with a dangerous weapon, and on each count was subjected to a control order without conditions for twelve months, with a non-parole period of twelve months.
On 2 October 2001 he again appeared before a Children’s Court on charges of robbery, affray and attempting to escape from lawful custody, for which offences he was again subjected to control orders. He lodged an appeal to the Penrith District Court. He was in detention pending the hearing of that appeal which was scheduled for 1 March 2002. He absconded from detention on 2 January 2002 and was at large until arrested on 14 July 2002.
On the following day he was convicted of an offence of goods in custody at Blacktown Local Court and sentenced to imprisonment for a fixed term of one…

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 King

Details

AGLC: R v King [2003] NSWCCA 352
Case: [2003] NSWCCA 352
Decision Date: 21 November 2003

CaseChat Overview and Summary

The case of R v King involved an appeal by the Crown against the sentencing of the defendant, who had been found guilty of multiple serious criminal offences. The nature of the dispute centred on the appropriateness of the sentence imposed by the lower court, which the Crown argued was manifestly inadequate given the gravity of the crimes committed and the circumstances surrounding the defendant's unlawful presence at the time of offending. The case was heard in the higher court, which was tasked with reviewing the original sentence and determining whether it should be altered.

The legal issues the court needed to address included whether the sentence was manifestly inadequate, considering the multiple offences, the significant value of the property stolen and not recovered, and the fact that the defendant was unlawfully at large when the crimes were committed. Additionally, the court had to consider the principle of parity, given that the defendant's co-offenders had been dealt with in a different forum, the Youth Drug Court. The Crown also sought to highlight aggravating factors such as the defendant's criminal history and the impact of the crimes on the victims.

In delivering its judgment, the court examined the circumstances of the case in detail, including the nature of the offences, the defendant's background, and the principle of parity. The court found that the original sentence did not adequately reflect the seriousness of the crimes and the need for deterrence and denunciation. The court considered the comments on sentence remarks made in the lower court, which had emphasised rehabilitation, and weighed these against the overarching need for an appropriate punitive response. Ultimately, the court determined that the sentence was indeed manifestly inadequate and varied the sentence to better reflect the gravity of the offences committed.

The final orders of the court included an increased sentence for the defendant, taking into account the aggravating factors and the need for a proportionate response to the crimes committed. The court's decision underscored the importance of ensuring that sentences reflect the seriousness of the offences and the principles of justice, particularly in cases involving multiple serious crimes and offenders unlawfully at large.

Orders