R v Otto - [1999] NSWCCA 190

CITATION: R v Otto [1999] NSWCCA 190

FILE NUMBER(S): CCA 60611/98

HEARING DATE(S): 19/7/99

JUDGMENT DATE:
19 July 1999

PARTIES :

Regina
Jason Paul Otto (Appellant)

JUDGMENT OF: Studdert J at 1; Smart AJ at 24

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/21/3235

LOWER COURT JUDICIAL OFFICER: Ford ADCJ

COUNSEL: R.D. Ellis (Crown)
In person

SOLICITORS: S.E. O'Connor (Crown)

CATCHWORDS:

ACTS CITED: Criminal Procedure Act
Crimes Act
Sentencing Act

DECISION: Leave to appeal granted, appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
60611/98
STUDDERT J
SMART AJ

Monday 19 July 1999

REGINA v JASON PAUL OTTO
JUDGMENT

1   STUDDERT J: The applicant, Jason Paul Otto, pleaded guilty to two counts in an indictment presented in the District Court. The first count charged him with stealing a motor vehicle and the second with stealing property.
2   His Honour, Acting Judge Ford QC, sentenced the applicant on the second count to a minimum term of four years to commence on 12 February 1998 and to expire on 11 February 2002 and an additional term of two years. On the first count his Honour fixed a sentence of twelve months to be served concurrently with the sentence imposed on the second count. The judge also dealt with the applicant for breach of a recognizance which had previously been fixed, and imposed a fixed term of six months, again to be served concurrently with the terms fixed on the counts contained in the indictment.
3   The applicant now seeks leave to appeal against the severity of the sentence imposed.
4   The judge was asked to take into account, and did take into account when passing sentence upon the applicant, a number of offences scheduled pursuant to the Criminal Procedure Act. Those matters comprised some seven offences and a number of them were similar to the offence charged in the second count in the indictment. Two other scheduled offences related to the manner of driving of a vehicle and driving whilst disqualified. The offence charged in the second count in the indictment was one which attracts a maximum penalty under s 94 of the Crimes Act of fourteen years penal servitude.
5   The facts relating to the matters charged in the indictment were not in dispute and a statement of facts was tendered. Shortly, the applicant was one of three men who went to a carpark and entered a vehicle that had been parked there, with the aid of a screwdriver. They used the screwdriver to start the motor vehicle and then travelled off in it.
6   Two nights later they travelled in that stolen vehicle to the carpark of the Fairfield RSL Club. The vehicle was driven up behind the victim, Lynette Essey, and the rear nearside passenger reached out of the vehicle grabbing the victim’s handbag. She fell to the ground and the vehicle drove off. The victim was injured, suffering minor lacerations. What was stolen was a black drawstring pouch that contained make-up, personal papers and $20…

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 Otto

Details

AGLC: R v Otto [1999] NSWCCA 190
Case: [1999] NSWCCA 190
Decision Date: 19 July 1999

CaseChat Overview and Summary

In the matter of Regina v Jason Paul Otto, the appellant was sentenced by the District Court on two counts, one for stealing a motor vehicle and the other for stealing property. Otto's appeal against the severity of his sentence was heard by the Court of Criminal Appeal, where the primary legal issue was whether the sentence imposed was appropriate. The court considered the nature of the offences, Otto's criminal history, and the necessity for general and specific deterrence in reaching its decision.

The Court of Criminal Appeal determined that the District Court judge had appropriately balanced the seriousness of the crimes, Otto's criminal history, and the need for deterrence. The court acknowledged Otto's efforts to rehabilitate himself, including participation in various programs and courses while in custody, but found that these efforts did not warrant a reduction in the sentence. The judges found no error in the sentencing process and concluded that the sentence was appropriate. As a result, the Court granted Otto leave to appeal but dismissed the appeal.

The final order of the Court was that leave to appeal was granted, but the appeal was dismissed, and the original sentence was upheld.

Orders