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R v Reilly

R v Reilly

Case [2012] NSWCCA 166 13 August 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Reilly; R v Smith [2012] NSWCCA 166
Hearing dates: 28 June 2012
Decision date: 13 August 2012
Before: Basten JA
Price J
S. G Campbell J
Decision:
Catchwords: CRIMINAL LAW - appeal - sentencing - co-offenders in a 'ram raid' - whether sentencing judge failed to apply a discount for utilitarian value of pleas of guilty - whether Smith's sentence was manifestly excessive - whether sentencing judge failed to give Smith credit for pre-sentence custody - whether sentencing judge erred in the manner in which he took Form 1 matters into account - parity - whether sentencing judge failed to take into account Reilly's lack of significant previous convictions - whether Reilly had a justifiable sense of grievance - re-sentence.
Legislation Cited: Crimes Act 1900 s 112(2), s 113(2), s 154F,
s154G, s 195(1)(b)
Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
Devine v R [2009] NSWCCA 261
Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321
Forbes v R [2009] NSWCCA 292
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Hili v R; Jones v R [2010] HCA 45; (2010) 242 CLR 520
House v R [1936] HCA 40; (1936) 55 CLR 499
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
R v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v English [2000] NSWCCA 245
R v Ilbay [2000] NSWCCA 251;
R v Kollas and Mitchell [2002] NSWCCA 491
R v Lawrence [2005] NSWCCA 91
R v McHugh (1985) 1 NSWLR 588
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v Timmis [2003] NSWCCA 158
Category: Principal judgment
Parties: Beau Alexander Smith
Steven John Reilly
Crown
Representation: Mr I Nash (applicant Reilly)
Mr W Hunt (applicant Smith)
Ms M Cinque (respondent)

File Number(s): 2010/279129 2010/254838
Decision under appeal

Date of Decision:

2011-07-28 00:00:00

Before:

Black DCJ

File Number(s):

2010/279129
2010/254838

Judgment

BASTEN JA: I agree with Price J.

PRICE J: Beau Alexander Smith and Steven John Reilly seek leave to appeal against the sentences imposed upon them by Black DCJ (the judge) in the District Court at Lismore on 28 July 2011. For the sake of convenience, the appeals were heard together. With no disrespect to the applicants, I will refer to them by their surnames.

Smith and Reilly were co-offenders in an offence of aggravated break and entering the Target Country Store at Goonellabah on 23 January 2010 and stealing property of Target Australia Pty Ltd. The circumstance of…

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 Reilly

Details

AGLC: R v Reilly [2012] NSWCCA 166
Case: [2012] NSWCCA 166
Decision Date: 13 August 2012

CaseChat Overview and Summary

The case of R v Reilly arose from an appeal against sentencing in relation to a co-offending incident involving a 'ram raid'. The appellant, Reilly, was one of the participants in a break-in at a commercial premises with the intent to steal. The primary legal issues before the court were whether the sentencing judge had appropriately applied a discount for the utilitarian value of Reilly's pleas of guilty, whether the sentence imposed on co-offender Smith was manifestly excessive, and whether the sentencing judge had correctly accounted for pre-sentence custody and other relevant factors in Reilly's case.

The court considered whether the sentencing judge had failed to adequately discount the sentence for the utilitarian value of Reilly's guilty pleas. It was argued that the judge did not sufficiently consider this aspect when determining the sentence. The court also assessed whether Smith's sentence was manifestly excessive and if the sentencing judge had correctly accounted for the time Smith had already spent in custody prior to sentencing. Furthermore, the court examined whether the sentencing judge had erred in how he took into account the matters detailed in Form 1, particularly whether he had failed to give sufficient credit to Reilly's lack of significant previous convictions. The court also considered whether Reilly had a justifiable sense of grievance and whether this should have influenced the sentence.

The court determined that the sentencing judge had indeed failed to apply an appropriate discount for the utilitarian value of Reilly's pleas of guilty and had not adequately considered other mitigating factors, including the lack of significant previous convictions. Additionally, the court found that Smith's sentence was not manifestly excessive but that the sentencing judge had not correctly credited the pre-sentence custody time for Reilly. The court held that the sentencing judge's approach to Form 1 matters was flawed, leading to an unjust outcome. Consequently, the court re-sentenced both Reilly and Smith, ensuring that all relevant factors were appropriately considered.

The final orders of the court included a re-sentencing of both Reilly and Smith, with specific adjustments to account for the mitigating factors that had been overlooked during the initial sentencing. The court's re-sentencing aimed to achieve a just outcome that balanced the needs of the community and the individual circumstances of the offenders.

Orders