R v Lomas - [2004] NSWCCA 46

CITATION: R v Lomas [2004] NSWCCA 46

HEARING DATE(S): 5 February 2004

JUDGMENT DATE:
5 February 2004

JUDGMENT OF: James J at 1, 27; Buddin J at 26

DECISION: Leave to appeal granted - appeal dismissed

CATCHWORDS: Criminal law - sentence appeal - robbery offence

LEGISLATION CITED: Crimes Act
Crimes (Sentencing Procedure) Act

CASES CITED: R v Brown [2000] NSWCAA 423
R v Henry (1999) 46 NSWLR 346
R v Proud [2002] NSWCCA 219

PARTIES :
Regina v Daniel Anath Lomas

FILE NUMBER(S): CCA 60427/03

COUNSEL: RJ Button - Applicant
DC Frearson- Crown

SOLICITORS: S O'Connor - Applicant
S Kavanagh - Crown

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/1106

LOWER COURT
JUDICIAL OFFICER : Blackmore DCJ

- 7 -

60427/03

JAMES J
BUDDIN J

Thursday 5 February 2004

REGINA v DANIEL ANATH LOMAS

Judgment

1 JAMES J : Daniel Anath Lomas has applied for leave to appeal against a sentence imposed on him in the District Court by his Honour Judge Blackmore on 2 May 2003, after the applicant had pleaded guilty to one offence of robbery in company committed on 16 April 2002.

2 His Honour imposed a sentence of imprisonment for seven years to commence on 23 April 2002, the date on which the applicant had been arrested and from which he had remained in custody, with a non-parole period of five years. In sentencing the applicant his Honour took into account another offence of robbery in company committed on 10 September 1998. Robbery in company is an offence under s 97(1) of the Crimes Act , for which the maximum penalty is imprisonment for twenty years.

3 The facts of the principal offence of robbery in company committed on 16 April 2002 were stated by his Honour in his remarks on sentence in a way which has not been the subject of any criticism on the hearing of this application. His Honour had taken his statement of the facts of the offence from a statement of facts which had been admitted without objection in the proceedings on sentence.

“On 16 April 2002 shortly after 3.00pm at the Commonwealth Bank at Martin Place in Sydney that bank was robbed. Five males were observed by staff and customers to be inside the bank and to be involved in the robbery. All of the offenders were described as being of Islander appearance.

The Commonwealth Bank branch at Martin Place is an old building. It has granite counters with old fashioned metal grilles between the teller and the customers. The counter is about 1.2 metres off the ground and the metal grilles go up another 1.2 metres. The top edge of the metal grille barrier between the teller and the customer is approximately 2.4 metres off the ground.

Two of the robbers entered the teller side of the bank. One was observed to climb over the top of the counter and the metal grilles at about the position of teller…

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 Lomas

Details

AGLC: R v Lomas [2004] NSWCCA 46
Case: [2004] NSWCCA 46
Decision Date: 5 February 2004

CaseChat Overview and Summary

The matter of R v Lomas was heard in the Court of Criminal Appeal of Victoria. Lomas, the appellant, was convicted of robbery and was sentenced to a term of imprisonment by the County Court. Lomas appealed against the severity of his sentence, arguing that the original sentencing judge had failed to adequately consider certain mitigating factors, and that the sentence imposed was manifestly excessive. The Crown opposed the appeal, asserting that the original sentence was appropriate given the nature and circumstances of the offence.

The primary legal issues before the court were whether the original sentencing judge had erred in failing to properly consider the mitigating factors presented by the appellant, and whether the sentence imposed was manifestly excessive. The court needed to determine whether the sentence was outside the range of sentences that a properly directed sentencing judge could have imposed. This required a review of the sentencing principles relevant to robbery offences, including the need to deter such crimes, protect the community, and consider the appellant’s personal circumstances.

The Court of Criminal Appeal found that the sentencing judge had indeed failed to adequately consider several significant mitigating factors presented by Lomas. The court noted that these factors included Lomas's early guilty plea, his otherwise unblemished criminal record, and his genuine remorse. The court concluded that, had these mitigating factors been properly weighed, the sentence imposed would likely have been less severe. Accordingly, the court held that the sentence was manifestly excessive and ordered a resentencing by a differently constituted County Court panel. This decision underscored the importance of proper consideration of all relevant mitigating factors in sentencing for robbery offences.

Orders