CATCHWORDS:
Crown appeal
asserted manifest inadequacy of sentence
robbery being armed with an offensive weapon
plea of guilty
subjective circumstances
error of fact or law or procedure
protective custody
planning as an aggravating factor
need not greed as the motivating factor
delay

LEGISLATION CITED:
Crimes Act 1901 (NSW) s94, s97
Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3, Division 3, s21A, s44
Criminal Appeal Act 1912 (NSW), s5D

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60355/03
60037/04
LEVINE J
SIMPSON J
BARR J
Friday 12 March 2004

REGINA v Wayne Bradley REYNOLDS

Judgment

LEVINE J: I agree with Simpson J.
SIMPSON J: This is a Crown appeal against the asserted manifest inadequacy of a sentence imposed upon the respondent in the District Court on 13 June 2003, following his plea of guilty to a charge of robbery being armed with an offensive weapon. The charge was brought pursuant to s97 of the Crimes Act 1901 which prescribes a maximum penalty of imprisonment for twenty years. Also taken into account pursuant to Part 3, Division 3 of the Crimes (Sentencing Procedure) Act1999 (“the Sentencing Procedure Act”) was an offence of larceny. The respondent was sentenced to imprisonment for four years with a non-parole period of two years, commencing on 4 December 2002.
An application by the respondent for leave to appeal against the severity of the sentence was abandoned.
facts
The robbery offence was committed on 20 June 2002, at the Windale Post Office. At about 10.20 am on that morning the respondent entered the Post Office, where a Mr Neil Somaiya was working. The respondent handed Mr Somaiya some coins, which he asked to have exchanged for a fifty cent piece. As Mr Somaiya sought to comply, he opened the cash drawer, whereupon the respondent rushed behind the counter, producing a knife. He pushed Mr Somaiya and then struck him on the shoulder, using his right hand in which he held the knife. He removed money from the cash drawer and fled, dropping the knife. The amount of money taken was $536.00.
Later that day, police attended at the respondent’s last known address, which appeared by then to have been abandoned. They searched the premises. Among other things they found a piece of paper which contained a list of business addresses. Included on these was the Windale Post Office. Symbols against some of the addresses (not including Windale Post Office) were stated to indicate “Good ones” or “Maybes”.
The larceny offence was committed two days later,…

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 Reynolds

Details

AGLC: R v Reynolds [2004] NSWCCA 51
Case: [2004] NSWCCA 51
Decision Date: 12 March 2004

CaseChat Overview and Summary

The case of R v Reynolds involved the Crown appealing against the severity of a sentence imposed on the respondent for two serious offences. The first offence was an armed robbery at the Windale Post Office on 20 June 2002, and the second was the theft of gold bracelets from a jewellery store on 30 June 2002. Both offences were committed by the respondent while armed with an offensive weapon. The respondent pleaded guilty to both charges. The Crown sought to appeal the sentence, arguing that it was manifestly inadequate given the nature of the crimes and the respondent's criminal history.

The central legal issue before the court was whether the sentence imposed by the trial judge was manifestly inadequate. The Crown argued that the trial judge had failed to sufficiently account for the respondent's planning and preparation for the robberies, which constituted an aggravating factor. The Crown submitted that the respondent's drug addiction, while a mitigating factor, did not need to be the sole motivating factor for his criminal behaviour to warrant a harsher sentence. The respondent, on the other hand, contended that the sentence was appropriate considering his age, his prior criminal history, and the delay in entering a guilty plea.

The court examined the nature of the offences and the respondent's criminal history, including his prior convictions for similar robberies. The court considered the subjective circumstances of the respondent, including his age at the time of the offences and his history of drug addiction. The court also assessed the trial judge's consideration of the respondent's planning and preparation for the crimes as an aggravating factor, as well as the delay in the respondent's plea of guilty. The court concluded that while the trial judge had adequately considered the aggravating factors, there was an error in the overall assessment of the appropriate sentence, which did not sufficiently reflect the gravity of the crimes committed.

The court allowed the Crown's appeal against the severity of the sentence and ordered a re-sentencing hearing. This decision underscored the importance of considering both aggravating and mitigating factors when imposing a sentence for serious crimes, particularly in cases involving repeat offenders and detailed planning.

Orders

Orders of the court

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Background

Background to the litigation

An application by the respondent for leave to appeal against the severity of the sentence was abandoned.facts The robbery offence was committed on 20 June 2002, at the Windale Post Office. At about 10.20 am on that morning the respondent entered the Post Office, where a Mr Neil Somaiya was working. The respondent handed Mr Somaiya some coins, which he asked to have exchanged for a fifty cent piece. As Mr Somaiya sought to comply, he opened the cash drawer, whereupon the respondent rushed behind the counter, producing a knife. He pushed Mr Somaiya and then struck him on the shoulder, using his right hand in which he held the knife. He removed money from the cash drawer and fled, dropping the knife. The amount of money taken was $536.00. Later that day, police attended at the respondent’s last known address, which appeared by then to have been abandoned. They searched the premises. Among other things they found a piece of paper which contained a list of business addresses. Included on these was the Windale Post Office. Symbols against some of the addresses (not including Windale Post Office) were stated to indicate “Good ones” or “Maybes”. The larceny offence was committed two days later, on 30 June. With a female companion, during the course of the morning, the respondent entered a jewellery store and looked at jewellery on display and left. Later in the day the respondent returned alone and asked the shop assistant to show him some gold bracelets. The assistant showed him some bracelets, one at a time. The respondent then distracted the assistant, and reached in front of her and took a roll of gold bracelets from the cabinet. He fled from the store. The jewellery he took was valued at almost $10,000.00. The following day he sold one of the bracelets for the sum of $150.00. The respondent was arrested and interviewed by police on 4 July 2003 in relation to both matters. He denied any involvement in either offence. He was, nevertheless, charged. Subsequently both Mr Somaiya and the jewellery store assistant identified the respondent as the perpetrator of the offences.the plea of guilty The respondent’s plea of guilty was entered on 24 April 2003, more than eight months after his arrest. Until then he had maintained his intention to plead not guilty. The reason for the late entry of a plea of guilty was said to be the late acceptance by the Crown of a proposal that the rest of the jewellery be dealt with under Part 3 Division 3 of the Sentencing Procedure Act, rather than by way of separate charge. A letter signifying accepting the proposal written by the Solicitor for Public Prosecutions to the respondent’s legal representatives was produced in evidence. It was dated 16 April 2003. It will be necessary to consider the implications of the timing of the plea when dealing with the submissions advanced on behalf of the parties.subjective circumstances The respondent was born on 15 August 1979. He was a few weeks short of twenty-three years of age at the time he committed the offences. He had a criminal record which, significantly, included two convictions for robbery from the person, in relation to which the respondent was sentenced in August 1998, under s94 of the Crimes Act (which section prescribes a maximum penalty of imprisonment for fourteen years). He was sentenced, under the sentencing regime which then applied (Sentencing Act 1989), to concurrent minimum terms of penal servitude for two years and additional terms of two years – sentences effectively identical to that the subject of the present appeal. An application for leave to appeal against the severity of those sentences was dismissed on (R v Reynolds [1999] NSWCCA 238, unreported, 16 August 1999). Both of those offences were committed in shops in the Newcastle region, against shopkeepers, each of whom struggled with the respondent. One victim sustained an injury to her back and arm when resisting the respondent’s efforts to remove a cash register. The other victim was punched in the face. These two robberies yielded a total sum of $800.00 and the cash register. They were committed as a result of the respondent’s drug addiction.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

LEVINE J

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Ratio Decidendi

Legal Principle Established

Established by: LEVINE J

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Citations

AGLC Citation

R v Reynolds [2004] NSWCCA 51

Most Recent Citation

Harrison v Harris [2013] NSWLEC 105

Cases citing this decision · 13 of 13 shown

Chief Executive Office of Environment and Heritage v Somerville (No 2)
[2021] NSWLEC 78

…r and refer to both the evidence that may affirm, and the evidence that may negative the drawing of such a conclusion. This Court in R v Reynolds [2004] NSWCCA 51, in determining on the facts of that case that evidence of planning was very limited but that it did exist and was of greater significance than that cons…
Environment Protection Authority v Mouawad (No 2); Environment Protection Authority v Aussie Earthmovers Pty Ltd (No 3)
[2020] NSWLEC 166 Para 38

…were planned and organised within the meaning of s 21A(2)(n), relying on NCR Australia Pty Ltd v Credit Connection Pty Ltd at [72]-[76]; R v Reynolds [2004] NSWCCA 51 at [37]-[41]: at [91]. Preston CJ disagreed and held that it was not established on the evidence that the offences committed by the defendants were p…
R v Ralston
[2020] ACTCA 47 Para 1

…An affirmative answer was given by the NSW Court of Criminal Appeal in R v Reynolds [2004] NSWCCA 51 ( Reynolds ) at [26] where Simpson J (with whom Levine and Barr JJ agreed) found that a specific error would only warrant upholding a Crown appeal where a manifestly inadequate sentence was imposed. Her Honour said:…
Environment Protection Authority v McMullen
[2020] NSWLEC 87

…sider and refer to both the evidence that may affirm, and the evidence that may negative the drawing of such a conclusion. This Court in R v Reynolds [2004] NSWCCA 51, in determining on the facts of that case that evidence of planning was very limited but that it did exist and was of greater significance than that…
Environment Protection Authority v Complete Asbestos Removal Pty Ltd; Environment Protection Authority v Endacott
[2016] NSWLEC 167 Para 91

…d within the meaning of s 21A(2)(n): see, for example, NCR Australia Pty Ltd v Credit Connection Pty Ltd [2005] NSWSC 1118 at [72]-[76]; R v Reynolds [2004] NSWCCA 51 at [37]-[41]. The offences were not committed on the spur of the moment. Rather, Mr Endacott went to the effort of creating the false clearance certi…
R v MB (No. 3)
[2014] NSWSC 1796 Para 1

…o have regard to the whole of the evidence in determining whether I am satisfied beyond reasonable doubt that the offending was planned: R v Reynolds [2004] NSWCCA 51 at [39] per Simpson J, Levine and Barr JJ agreeing. In this regard, the evidence of the offender making arrangements for OB's Baptism (referred to at…
Harrison v Harris
[2013] NSWLEC 105

…sider and refer to both the evidence that may affirm, and the evidence that may negative the drawing of such a conclusion. This Court in R v Reynolds [2004] NSWCCA 51, in determining on the facts of that case that evidence of planning was very limited but that it did exist and was of greater significance than that…
Cornish v Director of Public Prosecutions (Cth) [2012] HCATrans 202
[2012] HCATrans 202

…hen to matters post ‑ and there is no, with respect, dint to be made to the argument by the legislative reform ‑but in the matter of R v Reynolds [2004] NSWCCA 51 at paragraph 26, Justice Simpson – and I have set out the relevant passage, it is identified in the submissions in‑chief, but it is set out in the reply…
R v Jajou
[2009] NSWCCA 167 Para 23

…In R v Reynolds [2004] NSWCCA 51 at [26] Simpson J said: "[26] I am satisfied, however, that counsel for the respondent is correct in his contention that the ultimate question is whether the sentence has been shown to be manifestly inadequate. That does not exclude the identification of specific error, where it can…
Hewitt v R
[2007] NSWCCA 353

…er (CCA, unreported 15 November 1990) Regina v Johnson [2004] NSWCCA 76 Regina v McNaughton [2006] 163 A Crim R 381 Regina v Reynolds [2004] NSWCCA 51 Regina v Wickham [2004] NSWCCA 193 Regina v Willard [2005] NSWSC 402 Regina v Yildiz (2006) 160 A Crim R 218 Sales v The Queen (CCA, unreported 2 June 1989) PARTIES:…
NCR Australia Pty Ltd v Credit Connection Pty Ltd
[2005] NSWSC 1118

…01) 53 NSWLR 527 R v Dolan [2005] NSWSC 320 R v Henry (1999) 46 NSWLR 346 R v Jurisic (1998) 45 NSWLR 209 R v Olbrich (1999) 199 CLR 270 R v Reynolds [2004] NSWCCA 51 R v Storey [1998] 1 VR 359 R v Tadrosse [2005] NSWCCA 145 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Willard [2005] NSWSC 402 R v Wong (1999) 4…
Director of Public Prosecutions v Ip
[2005] ACTCA 24 Para 7

…own must go further and show that (possibly in the light of, or as a result of, the error) a manifestly inadequate sentence was imposed: R v Reynolds [2004] NSWCCA 51 at [23], per Simpson J, Levine and Barr JJ agreeing. The respondent pointed to the sentencing Judge’s statement that, but for the ‘very early plea of…
R v Hoskins
[2004] NSWCCA 236

…gina v Dodd (1991) 57 A Crim R 349 Regina v Ellis (1986) 6 NSWLR 603 Regina v Fyffe [2002] NSWSC 751 Regina v PPB [1999] NSWCCA 360 Regina v Reynolds [2004] NSWCCA 51 Regina v Thomson & Houlton (2000) 49 NSWLR 383 PARTIES : REGINA (Appellant) v LEONARD WILLIAM HOSKINS (Respondent) FILE NUMBER(S): CCA 60535/04 COUNS…

View all 13 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Durocher-Yvon
[2003] NSWCCA 299 Para 9

…The Crown referred to R v Durocher-Yvon [2003] NSWCCA 299. In that case Howie J, with whom Sheller JA and Sully J agreed, wrote: “[23] What this application does illustrate is that, although the fact that the offender may be required to serve his sentence in protective custody is a relevant matter in determining the…
R v Totten
[2003] NSWCCA 207 Para 12

…tective custody into account, given the frequently flimsy nature of the evidence available and the different protective custody regimes: R v Totten [2003] NSWCCA 207; R v Scott [2003] NSWCCA 28.…
R v Scott
[2003] NSWCCA 28 Para 12

…given the frequently flimsy nature of the evidence available and the different protective custody regimes: R v Totten [2003] NSWCCA 207; R v Scott [2003] NSWCCA 28.…
Dinsdale v The Queen
[2000] HCA 54 Para 2

…ask of the Court of Criminal Appeal in exercising power under s5D is to determine whether error has been made in the sentencing process: Dinsdale v R [2000] HCA 54; 202 CLR 321. This is an application of the principles stated in House v R (1936) 55 CLR 499 at 505. Error of the House variety may, as has been stat…
Morawski v State Rail Authority
[2000] NSWCCA 309 Para 2

…ard to the timing of the plea, the respondent was not entitled to a discount of 25% (the maximum of the range promulgated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383), but that it should be inferred from the sentence that that was what was given. delay…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 2

…f the plea, the respondent was not entitled to a discount of 25% (the maximum of the range promulgated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383), but that it should be inferred from the sentence that that was what was given. delay…
R v Reynolds
[1999] NSWCCA 238 Para 9

…that the subject of the present appeal. An application for leave to appeal against the severity of those sentences was dismissed on ( R v Reynolds [1999] NSWCCA 238, unreported, 16 August 1999). Both of those offences were committed in shops in the Newcastle region, against shopkeepers, each of whom struggled with…
R v Henry
[1999] NSWCCA 111 Para 17

…it was entered when it was. He recorded the subjective case of which evidence had been given. He referred to the decision of this Court in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 and said: “The Court of Criminal Appeal in Henry’s case and other cases has made reference to the relationship of drug addiction to off…
R v Henry
[1999] NSWCA 111 Para 17

…n it was. He recorded the subjective case of which evidence had been given. He referred to the decision of this Court in R v Henry [1999] NSWCCA 111; 46 NSWLR 346 and said: “The Court of Criminal Appeal in Henry’s case and other cases has made reference to the relationship of drug addiction to offending. It sai…
Cranssen v the King
[1936] HCA 42 Para 2

…uate. Manifest inadequacy may be demonstrated merely by reference to the length of the sentence itself: R v Whittaker (1928) 41 CLR 230; R v Cranssen (1936) 55 CLR 509 at 519-20. The task of the Court of Criminal Appeal in exercising power under s5D is to determine whether error has been made in the sentencing proce…
Whittaker v The King
[1928] HCA 28 Para 2

…nce imposed is manifestly inadequate. Manifest inadequacy may be demonstrated merely by reference to the length of the sentence itself: R v Whittaker (1928) 41 CLR 230; R v Cranssen (1936) 55 CLR 509 at 519-20. The task of the Court of Criminal Appeal in exercising power under s5D is to determine whether error has b…
House v R
[1936] HCA 40 Para 2

…error has been made in the sentencing process: Dinsdale v R [2000] HCA 54; 202 CLR 321. This is an application of the principles stated in House v R (1936) 55 CLR 499 at 505. Error of the House variety may, as has been stated, be demonstrated by reference to the sentence itself, or by reference to the judge’s state…

Legislation cited in this decision · 3

Criminal Appeal Act 1912 (NSW)
5D 2 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 2)
Sentencing Act 1989 (NSW)
1 mention (from Para 9)