R v Minkley - [2019] NSWDC 422

District Court

New South Wales

Medium Neutral Citation: R v Minkley [2019] NSWDC 422
Hearing dates: 26 July 2019
Date of orders: 09 August 2019
Decision date: 09 August 2019
Jurisdiction: Criminal
Before: Weber SC DCJ
Decision:
(1) The offender is convicted of each count set forth in the indictment.
(2) The offender is sentenced to a term of imprisonment of 4 years and 8 months with a non-parole period of 3 years and 6 months.
(3) Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court directs that such term of imprisonment shall commence on 19 November 2018 and that the non-parole period shall expire on 18 May 2022 with the balance of the sentence to expire on 18 July 2023.
(4) Pursuant to the provisions of section 18B of the Drug Court Act 1998 (NSW), the offender is referred to the Drug Court.

Catchwords:
CRIME - Armed robbery - offensive weapon - where offender armed with machete - where offender robbed hairdresser and pharmacy - where small amount of money taken

SENTENCING -Relevant factors on sentence - Objective seriousness - considerable similarity to guideline judgment in R v Henry - offences in the low/mid and mid-range - Aggravating factors - breach of conditional liberty - planned or organised criminal activity - record of previous convictions including crimes of violence - medium/high risk of re-offending - Other matters - offences motivated by drug addiction - remorse shown - early guilty plea - no injury to persons - form 1 matters
SENTENCING - Multiple offences - Aggregate sentences - Imprisonment - referral to Drug Court
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Drug Court Act 1998 (NSW)
Drug Court Regulation 2015 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Chung v R [2017] NSWCCA 48
Johan v R [2015] NSWCCA 58
Markarian v The Queen (2005) 228 CLR 357
R v Henry (1999) 46 NSWLR 346
Category: Sentence
Parties: Regina (Crown)
Nathan Minkley (Offender)
Representation:
Counsel:
Mr B. Green (Offender)
Solicitors:
Mr E. Navea (ODPP)
Mr P. Cox (Offender)

File Number(s): 2018/00355838

Judgment

The offender comes before the Court having pleaded guilty to 2 counts of robbery, armed with an offensive weapon, contrary to the provisions of s 97(1) of the Crimes Act 1900 (NSW) (“Crimes Act”).
The maximum penalty for these offences is 20 years’ imprisonment. There is no applicable standard non-parole period.

Form 1 Offences

The offender has also asked the Court to take into account his guilty pleas in respect of:

3 further offences of larceny, contrary to s 117 of the Crimes Act; and

1 count of being armed with intent to commit an indictable offence, contrary to the provisions of s 114(1)(a) of the Crimes Act.

I have taken the form one matters into account in relation to the sequence 5 offence in accordance with the principles set forth in the Attorney General’s Application under section 37…

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 Minkley

Details

AGLC: R v Minkley [2019] NSWDC 422
Case: [2019] NSWDC 422
Decision Date: 09 August 2019

CaseChat Overview and Summary

The matter before the court was an appeal against conviction and sentence in relation to armed robberies committed by the appellant, Minkley. The robberies involved the use of a machete and targeted a hairdresser and a pharmacy, resulting in the theft of a small amount of money. The case was heard in the District Court of New South Wales, where the appellant was found guilty and subsequently appealed both the conviction and the sentence.

The primary legal issues addressed by the court were the appropriate sentencing considerations for the appellant's crimes, including the objective seriousness of the offences, the presence of aggravating and mitigating factors, and the need for an aggregate sentence given the multiple offences committed. The court also considered the relevance of the appellant's drug addiction, his criminal history, and the possibility of rehabilitation through referral to the Drug Court.

In determining the sentence, the court acknowledged the considerable similarity of the case to the guideline judgment in R v Henry, placing the offences in the low/mid to mid-range of seriousness. The court identified several aggravating factors, including the breach of conditional liberty, the planned nature of the criminal activity, the appellant's extensive criminal record, and the risk of re-offending. Mitigating factors considered included the appellant's early guilty plea, the absence of injuries to victims, and the display of remorse. The court concluded that the circumstances warranted a significant custodial sentence, but also recognised the need for rehabilitation, particularly due to the appellant's drug addiction.

The court sentenced the appellant to a term of imprisonment of 4 years and 8 months, with a non-parole period of 3 years and 6 months. The sentence was backdated to commence on the date of the appellant's arrest, with the non-parole period expiring on a specified date in 2022, and the full sentence on a later date in 2023. Additionally, the court referred the appellant to the Drug Court under the provisions of the Drug Court Act 1998 (NSW) to address his drug addiction and to facilitate his rehabilitation.

Orders

Orders of the court

(1) The offender is convicted of each count set forth in the indictment.

(2) The offender is sentenced to a term of imprisonment of 4 years and 8 months with a non-parole period of 3 years and 6 months.

(3) Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court directs that such term of imprisonment shall commence on 19 November 2018 and that the non-parole period shall expire on 18 May 2022 with the balance of the sentence to expire on 18 July 2023.

(4) Pursuant to the provisions of section 18B of the Drug Court Act 1998 (NSW), the offender is referred to the Drug Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Minkley [2019] NSWDC 422
Hearing dates:	26 July 2019
Date of orders:	09 August 2019
Decision date:	09 August 2019
Jurisdiction:	Criminal
Before:	Weber SC DCJ
Decision:	(1) The offender is convicted of each count set forth in the indictment. (2) The offender is sentenced to a term of imprisonment of 4 years and 8 months with a non-parole period of 3 years and 6 months. (3) Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court directs that such term of imprisonment shall commence on 19 November 2018 and that the non-parole period shall expire on 18 May 2022 with the balance of the sentence to expire on 18 July 2023. (4) Pursuant to the provisions of section 18B of the Drug Court Act 1998 (NSW), the offender is referred to the Drug Court.
Catchwords:	CRIME - Armed robbery - offensive weapon - where offender armed with machete - where offender robbed hairdresser and pharmacy - where small amount of money taken SENTENCING -Relevant factors on sentence - Objective seriousness - considerable similarity to guideline judgment in R v Henry - offences in the low/mid and mid-range - Aggravating factors - breach of conditional liberty - planned or organised criminal activity - record of previous convictions including crimes of violence - medium/high risk of re-offending - Other matters - offences motivated by drug addiction - remorse shown - early guilty plea - no injury to persons - form 1 matters SENTENCING - Multiple offences - Aggregate sentences - Imprisonment - referral to Drug Court
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Drug Court Act 1998 (NSW) Drug Court Regulation 2015 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Chung v R [2017] NSWCCA 48 Johan v R [2015] NSWCCA 58 Markarian v The Queen (2005) 228 CLR 357 R v Henry (1999) 46 NSWLR 346
Category:	Sentence
Parties:	Regina (Crown) Nathan Minkley (Offender)
Representation:	Counsel: Mr B. Green (Offender) Solicitors: Mr E. Navea (ODPP) Mr P. Cox (Offender)
File Number(s):	2018/00355838