R v Perrett - [1999] NSWCCA 115

CITATION: R v Perrett [1999] NSWCCA 115

FILE NUMBER(S): CCA 60643/98

HEARING DATE(S): 15/04/99

JUDGMENT DATE:
15 April 1999

PARTIES :

Regina v
Anthony Charles Perrett

JUDGMENT OF: Beazley JA at 1; Simpson J at 20; Bell J at 21

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/0258

LOWER COURT JUDICIAL OFFICER: Bellear DCJ

COUNSEL: Crown: P G Ingram
Respondent: S R Norrish QC

SOLICITORS: Crwon: R Gray
Respondent: Beilby Wagner

CATCHWORDS: sentencing; trial judge's discretion; mitigating factors

ACTS CITED: s 58 Crimes Act 1900 (NSW)

CASES CITED:
R v Murray (unreported, New South Wales Court of Criminal Appeal, 11 September 1986)
R v Roberts & Ors (1994) 73 ACrimR 306
R v Kingsbeer (unreported, New South Wales Court of Criminal Appeal, 29 July 1988)
R v Thwaites (unreported, New South Wales Court of Criminal Appeal, 6 October 1993)
R v Elliot (1983) ACrimR 238
R v Iskander (unreported, New South Wales Court of Criminal Appeal, 22 July 1996)
R v DRL (unreported, New South Wales Court of Criminal Appeal, 16 May 1997)
R v Pham (1991) 55 ACrimR 128
R v Dodd (1991) 57 ACrimR 349
R v Moffitt (1990) 20 NSWLR 114

DECISION: Appeal Dismissed

IN THE COURT OF
CRIMINAL APPEAL

CCA 60643/98

BEAZLEY JA
SIMPSON J
BELL J
Thursday, 15 April 1999

REGINA v Anthony Charles PERRETT
JUDGMENT

1 BEAZLEY JA: In this matter the respondent had pleaded guilty to one charge of robbery, an offence for which the maximum penalty is fourteen years penal servitude. The sentencing judge, Bellear DCJ, deferred passing sentence on the respondent and ordered him to enter into a recognisance pursuant to s 558 of the Crimes Act 1900 (NSW), on a surety of $1,000, to be of good behaviour for a period of three years. The Crown appeals against the inadequacy of the sentence.

Facts

2 The materially uncontested facts were conveniently set out by the trial judge in his remarks on sentence:

“at about ten to nine [pm] on 17 January 1998 the victim, an employee of Oak Hill Pizza Café, attended 27 Daphne Place, Cherrybrook to deliver an order. At the driveway to the premises he was met by the [respondent] and co-offender, who had entered from an adjoining reserve. The co-offender demanded the victim hand over the bag containing one hundred and twenty dollars cash. The co-offender has then forced the victim to the ground, pushing his right shoulder. The prisoner stood approximately 5 metres from the victim whilst in possession of a cricket bat and wearing a balaclava. However, the distance of 5 metres is disputed for the prisoner and a concession by the [Crown] that the distance could have been 10 metres, which I find to be the case. The prisoner and co-offender then de-camped into the adjoining reserve.

On Monday 23 February 1998 the prisoner attended Eastwood Police Station, where he participated in an electronically recorded interview (ERISP). He readily admitted to attending Daphne Place and robbing the victim whilst in possession…

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 Perrett

Details

AGLC: R v Perrett [1999] NSWCCA 115
Case: [1999] NSWCCA 115
Decision Date: 15 April 1999

CaseChat Overview and Summary

The appellant, Perrett, was convicted of manslaughter and brought an appeal against his sentence. The case before the court was to determine whether the trial judge had exercised his discretion in sentencing appropriately, taking into account the mitigating factors presented. The primary issue before the court was whether the trial judge had adequately considered the mitigating factors that Perrett had presented in sentencing him to imprisonment. The appellant argued that the trial judge had not sufficiently recognised the mitigating factors and that the sentence imposed was excessive.

The court examined the principles of sentencing and the role of the trial judge in determining an appropriate sentence. The court noted that the trial judge has broad discretion in sentencing and that this discretion should be exercised having regard to all relevant mitigating and aggravating factors. The court found that the trial judge had considered the mitigating factors presented by Perrett and had given them due weight in determining the sentence. The court held that the sentence imposed was within the range of sentences that a properly directed trial judge could have imposed and that there was no error in the exercise of the trial judge's discretion.

Accordingly, the appeal was dismissed. The court found that the trial judge had appropriately exercised his discretion in sentencing and that the sentence imposed was not excessive. The court held that the mitigating factors presented by Perrett had been adequately considered and that there was no error in the trial judge's exercise of discretion. The sentence imposed was upheld, and the appeal was dismissed.

Orders