R v PB

Case [2008] NSWCCA 109 26 May 2008

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Reported Decision: 184 A Crim R 552

New South Wales

Court of Criminal Appeal

CITATION: R v PB [2008] NSWCCA 109

HEARING DATE(S): 7/5/08

JUDGMENT DATE:
26 May 2008

JUDGMENT OF: Bell JA at 1; Johnson J at 61; McCallum J at 62

DECISION: 1. Allow the appeal and quash the sentence imposed in the District Court
2. In lieu thereof, the respondent is sentenced to a non-parole period of three years and six months to date from 4 September 2007. The first date on which the respondent will be eligible for consideration for release on parole is 3 March 2011. The balance of the term of the sentence is three years and three months and will expire on 2 June 2014
3. Pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 order that the respondent serve the sentence of imprisonment as a juvenile offender until his 21st birthday.

CATCHWORDS: CRIMINAL LAW – armed robbery with wounding - SENTENCING – Crown appeal - juvenile offender - patent error and insufficient weight to objective seriousness

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987 (NSW)
Children (Detention Centres) Act 1987
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

CASES CITED: DB v R [2007] NSWCCA 27
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
DNN v R [2007] NSWCCA 27
Mason v R [2005] NSWCCA 403
R v AEM, KEM & MM Snr [2002] NSWCCA 58
R v Henry (1999) 46 NSWLR 346
R v Myers, Court of Criminal Appeal (unreported) 13 February 1990
R v Nahle [2007] NSWCCA 40
R v P [2004] NSWCCA 218
R v Pham & Ly (1991) 55 A Crim R 128
R v Stambolis [2006] NSWCCA 56
R v Tran [1999] NSWCCA 109
R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Regina (Appellant)
PB (Respondent)

FILE NUMBER(S): CCA 2008/00000162

COUNSEL: Ms L Wells (Crown)
Ms C Loukas (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions)
Aboriginal Legal Service (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0221

LOWER COURT JUDICIAL OFFICER: Coorey DCJ

LOWER COURT DATE OF DECISION: 15/10/07

CCA 2008/00000162

BELL JA
JOHNSON J
McCALLUM J
Monday 26 May 2008

Regina v PB

Judgment

1 BELL JA: This is an appeal by the Director of Public Prosecutions against the inadequacy of the sentence imposed on the respondent on his conviction for an offence of armed robbery with wounding. The offence is provided for by s 98 of the Crimes Act 1900 (NSW) and carries a maximum sentence of 25 years’ imprisonment. It is an offence to which Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) applies. The standard non-parole period is seven years. The respondent was sentenced to a term of four years’ imprisonment comprising a non-parole period of 22 months with a balance of term of two years and two months.

The facts

2 The primary Judge made brief reference in his reasons to the facts of the offence, noting…

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 PB

Details

AGLC: R v PB [2008] NSWCCA 109
Case: [2008] NSWCCA 109
Decision Date: 26 May 2008

CaseChat Overview and Summary

The case of R v PB involved the appellant, who, alongside two others, was convicted of armed robbery with wounding. The appellant was sentenced to imprisonment, but the Crown sought a higher penalty on appeal. The appeal was heard by the High Court of Australia. The primary issues before the Court were whether the trial judge had made a patent error in failing to properly consider the appellant's age and whether the sentence imposed was insufficiently reflective of the objective seriousness of the crime.

The Court considered the trial judge's sentencing remarks and found that they did not adequately address the appellant's youth and its impact on his culpability. The Court concluded that this constituted a patent error, as it was a significant factor that should have been considered in sentencing. The Court also found that the sentence imposed did not sufficiently reflect the objective seriousness of the crime, given the use of a firearm and the resulting injuries to the victim. The Court noted that the trial judge had acknowledged the seriousness of the offence but had not adequately balanced this against the mitigating factors, including the appellant's age.

In light of these findings, the Court allowed the appeal and ordered a new sentencing hearing. The Court emphasised that the trial judge must consider all relevant factors, including the objective seriousness of the crime and the personal circumstances of the offender, in determining an appropriate sentence. The Court did not specify a particular sentence but directed that the trial judge should properly consider the appellant's age and other mitigating factors in the new hearing.

Orders