R v Newman - [2005] NSWCCA 388

CITATION:
R v NEWMAN [2005] NSWCCA 388

HEARING DATE(S): 4 November 2005

JUDGMENT DATE:

4 November 2005

JUDGMENT OF:
Spigelman CJ at 16; Sully J at 17; Hulme J at 1

DECISION:
Leave to appeal granted; Appeal dismissed

PARTIES:
Regina
Craig John NEWMAN

FILE NUMBER(S):
CCA 2005/1220

COUNSEL:
Crown: G Frearson SC
Applicant: A P Cook

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

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/1241

LOWER COURT JUDICIAL OFFICER:
McLoughlin DCJ

- -

3006/2330

SPIGELMAN CJ
SULLY J
HULME J
4 November 2005

R v Craig John NEWMAN

Judgment

1 HULME J: The abovenamed Applicant seeks to appeal from sentences imposed by Judge McLoughlin on 20 January last in respect of 2 offences of break enter and steal. The first was committed on 16 January 2002 when the Applicant forced entry to a residence in Leichhardt by smashing in a rear door. Within the premises he stole a video-cassette recorder, a CD stereo system, a wallet and some $400 in cash, the total value of the property stolen being said to be $1,980.00. The damage to the rear door was said to cost some $500.00.

2 The second offence occurred on 8 November 2002 and also at a residence at Leichhardt. The applicant placed a chair under a garden window and lifted the window off its track. Having gained entry he stole items of jewellery, a laptop computer, cheques, a cheque book and a car key, the total value of which was said to be some $8,563.00.

3 In respect of the first of these offences, the Applicant was sentenced to imprisonment for a non-parole period of 2 years 6 months commencing on 7 March 2004 and a balance of term of 10 months. In respect of the second offence the Applicant was sentenced to imprisonment for a non-parole period of 3 years and 8 months commencing on 7 July 2004 and an additional term of 12 months.

4 The effective term of imprisonment then imposed thus involved an effective non-parole period of 4 years commencing on 7 March 2004 and expiring on 6 March 2008 and a balance of term of 12 months.

5 At the time of sentence for those offences, the Applicant was already in custody serving sentences earlier imposed in respect of three other offences of break, enter and steal, with two offences of “goods in custody” having been taken into account on a Form 1. These offences were committed respectively on 5 November 2001, 25 December 2001, 11 January 2002 and 7 March 2003. He was sentenced for those matters on 8 August 2003 – on two to imprisonment for 3 years and 6 months including non-parole periods of 2 years and 4 months commencing on 7 March 2003 - and on the third to imprisonment for 3 years and 11 months including a non-parole period of 2 years and 5 months both such periods commencing on 7 March 2004. The effect of these sentences was…

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 Newman

Details

AGLC: R v Newman [2005] NSWCCA 388
Case: [2005] NSWCCA 388
Decision Date: 4 November 2005

CaseChat Overview and Summary

In the case of R v Newman, the applicant, Craig John Newman, sought to appeal against sentences imposed by Judge McLoughlin for two offences of break, enter and steal. The first offence involved the applicant breaking into a residence in Leichhardt and stealing various items, while the second offence involved breaking into another residence in Leichhardt and stealing further items. The applicant was already serving sentences for three other similar offences at the time of sentencing for the two offences in question. The applicant argued that the proportion between the non-parole period and parole period was inappropriate and sought to have the parole period increased.

The legal issue before the court was whether the sentences imposed by the District Court were appropriate and whether the Court of Criminal Appeal should intervene to re-sentence the applicant. The applicant relied on the principle that, in the absence of considerations which militate against it, there should be a prima facie relationship between the non-parole period and parole period of 3 to 1. The court noted that the sentencing judge had considered the applicant's criminal history and decided not to reduce the period of further incarceration. The court also noted that the sentencing judge had not commenced the applicant's sentence as early as he could have and that a longer parole period could have been allowed.

The Court of Criminal Appeal held that there was no error in the sentencing judge's approach and that the sentences imposed were appropriate. The court granted leave to appeal but dismissed the appeal, finding that the sentences were within the range of the sentencing discretion and unlikely to have attracted a successful Crown appeal. The court also noted that the remarks of one of the judges in a previous case were not authoritative and that the totality of the sentences imposed on the applicant were justified by his criminal history and the need for general and personal deterrence, retribution and protection of the community.

Orders