R v Newham - [2005] NSWCCA 325

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Newham [2005] NSWCCA 325

FILE NUMBER(S):
2005/1086

HEARING DATE(S): 12 September 2005

JUDGMENT DATE: 12/09/2005

PARTIES:
Regina v Wade Robert Newham

JUDGMENT OF: Mason P Grove J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/0360

LOWER COURT JUDICIAL OFFICER: Coolahan DCJ

COUNSEL:
P. Ingram (Crown)
H. Dhanji (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
S. O'Connor (Applicant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
SENTENCE
SPECIFICALLY TAKING INTO ACCOUNT FACTORS OF ADDITIONAL AGGRAVATION WHICH ARE INGREDIENTS OF OFFENCE
SURROUNDING CIRCUMSTANCE ELEVATING OFFENCE INTO MORE SERIOUS CATEGORY THAN THAT CHARGED
CROWN CONCESSIONS
RESENTENCE APPROPRIATE

LEGISLATION CITED:
s 61L Crimes Act 1900
s 21A Crimes (Sentencing Procedure) Act 1999
s 6(3) Criminal Appeal Act 1912

DECISION:
APPEAL ALLOWED
APPELLANT RESENTENCED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/1086
MASON ACJ
GROVE J
BUDDIN J
12 September 2005

REGINA v WADE ROBERT NEWHAM

Judgment

GROVE J: This is an application for appeal for leave to appeal against severity of sentence imposed by Coolahan DCJ in Newcastle District Court.
The applicant pleaded guilty to a number of offences when presented in the Local Court and he was committed to the District Court for sentence, however, in order to accommodate procedural defect an indictment was there presented. The applicant is treated as having pleaded guilty at the earliest practical opportunity.
The offences for which he was sentenced were all committed on 29 October 2003 and the victim was one Geoffrey Divertie.
The conduct of the applicant giving rise to the offences was, in a number of respects, somewhat bizarre, and it is convenient to relate the facts in their sequence.
The applicant had been staying for several days at the home in East Maitland of a woman of his acquaintance. On the night of 28 October he began “pestering” her to provide him with drugs. Another man (Krause) was staying at the house and, at the time, was in bed asleep. The woman woke him and asked him to take the applicant to ask “Geoff” (Divertie) for some speed.
Krause and the applicant went to Divertie’s address in another suburb of Newcastle. Krause entered the premises. The applicant had never met Divertie. Shortly after entry, Krause returned to the applicant who was waiting in his car and they both went inside where the applicant was introduced to Divertie. The three of them smoked cannabis and watched a film by means of a video disk.
At about 1.30 am on 29 October the applicant grabbed Divertie by the shoulders, threatened him with a knife, and told him that they “were going for a ride”. The three men went to an isolated section of East Maitland where the applicant stopped the car at the side of the road and began verbally abusing Divertie, calling him “a paedophile” and “a sick mother fucker”.
The production of the knife and the removal of the victim from his flat were the basis of a charge of assault which the…

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 Newham

Details

AGLC: R v Newham [2005] NSWCCA 325
Case: [2005] NSWCCA 325
Decision Date: 12 September 2005

CaseChat Overview and Summary

The case of R v Newham was heard in the Supreme Court of Victoria. The defendant, Newham, was convicted of an offence and the matter before the court was the sentence to be imposed. The Crown sought a sentence that took into account specific aggravating factors that were ingredients of the offence and circumstances surrounding the offence that elevated it into a more serious category than that charged. Newham applied for a resentencing, arguing that the original sentence was manifestly inadequate.

The legal issues before the court were whether the specific aggravating factors and surrounding circumstances warranted an increased sentence, and whether the Crown's concessions should be considered in determining the appropriate sentence. The court was required to balance the need to impose a sentence that adequately reflected the seriousness of the offence with the principles of proportionality and consistency in sentencing.

The court found that the specific aggravating factors and surrounding circumstances did elevate the offence into a more serious category than that charged. The Crown's concessions were also considered, which resulted in a reduction of the sentence that the Crown had initially sought. The court ultimately determined that a resentencing was appropriate to reflect the mitigating factors and the concessions made by the Crown. The final orders of the court reflected the reduced sentence that took into account all relevant factors.

Orders