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R v Ridden

R v Ridden

Case [2016] NSWDC 2 29 January 2016

Criminal Liability

Sentencing

Mens Rea & Intention

Aggravated & Exemplary Damages

Criminal Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Ridden [2016] NSWDC 2
Hearing dates: 17 December 2015
Date of orders: 29 January 2016
Decision date: 29 January 2016
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentence

Catchwords: sentencing; purposes of sentencing; armed robbery; assault police; firearm possession; multiple offences, totality principle; parity; special circumstances; deterrence for young offenders; applicability of Evidence Act 1995 (NSW); aggregate sentence
Legislation Cited: s 60(1), s 60(2), s 97(2), s 192J, s 195(1A)(b) Crimes Act 1900 (NSW)
s 166 Criminal Procedure Act 1985 (NSW)
s 3, s 10A, s 137 Crimes (Administration of Sentences) Act 1999 (NSW)
s 29(3) Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)
s 7(1), s 65(3) Firearms Act 1996 (NSW)
Cases Cited: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]
Attorney General’s Application No. 1 (2002) 56 NSWLR 146
Barbaro v The Queen (2014) 253 CLR 58
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
CM v R [2013] NSWCCA 341
Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227
Do v R [2010] NSWCCA 182
Gill v The Queen [2010] NSWCCA 236
Grube v R [2005] NSWCCA 140
Hili v The Queen (2010) 242 CLR 520
Johnson v R [2010] NSWCCA 124
Knight v R [2005] NSWCCA 253
Legge v R [2007] NSWCCA 244
Lowe v The Queen (1984) 154 CLR 606
M A K & M S K v R [2006] NSWCCA 381
Markarian v The Queen (2005) 228 CLR 357
Munda v Western Australia (2013) 249 CLR 600
Pearce v The Queen (1998) 194 CLR 610
Postiglione v The Queen (1997) 189 CLR 295
R v Anderson NSWCCA (unreported, 25 March 1993)
R v Henry (1999) 46 NSWLR 346
R v Krstic [2005] NSWCCA 391
R v Qutami [2001] NSWCCA 353
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Storey [1998] 1 VR 359
R v Thomson (2000) 49 NSWLR 383
R v Thurgar (1990) 51 A Crim R 109
R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256 per Evatt J
R v Windle [2012] NSWCCA 222 at [42]
The Queen v Olbrich (1999) 199 CLR 270
The Queen v Pham [2015] HCA 39
The Queen v Ryan (2001) 206 CLR 267
Veen v The Queen (No 2) (1988) 164 CLR 465
Weininger v The Queen (2003) 212 CLR 629
Texts Cited: Victorian Sentencing Advisory Council, Does Imprisonment Deter? A Review of the Evidence, (April 2011)
J Trevena and D Weatherburn, “Does the first prison sentence reduce the risk of further offending?” (October 2015) 187 Crime and Justice Bulletin NSW Bureau of Crime Statistics and Research
D Weatherburn, J Hua and S Moffat, “How much crime does prison stop? The incapacitation effect of prison on burglary” (January 2006) 93 Crime and Justice Bulletin NSW Bureau of Crime Statistics and Research
W Wan, S Moffatt, C…

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 Ridden

Details

AGLC: R v Ridden [2016] NSWDC 2
Case: [2016] NSWDC 2
Decision Date: 29 January 2016

CaseChat Overview and Summary

The case before the court involved a defendant, Ridden, who was convicted of multiple serious offences, including armed robbery, assault on police, and illegal possession of a firearm. The matter was heard in the District Court of New South Wales, where the judge was tasked with determining an appropriate sentence for the defendant. The legal issues before the court included the purposes of sentencing, the application of the totality principle, the need for parity among sentences for multiple offences, and the special considerations applicable to sentencing a young offender. Additionally, the court had to consider the applicability of the Evidence Act 1995 (NSW) to the sentencing process and how to aggregate the sentences for the various offences.

The court began by examining the fundamental purposes of sentencing, which include denunciation, deterrence, rehabilitation, and protection of society. Given the defendant's young age and the nature of the offences, the court placed particular emphasis on deterrence and rehabilitation. The court then applied the totality principle, ensuring that the overall sentence did not exceed what would be proportionate to the gravity of the offences. The judge also considered the need for parity, making sure that each offence was addressed appropriately within the aggregate sentence. Special circumstances, including the defendant's age, were weighed in the sentencing decision. The court recognised the importance of deterrence for young offenders, while also considering the potential for rehabilitation. Finally, the court evaluated the applicability of the Evidence Act 1995 (NSW) to ensure that all relevant evidence was considered in a lawful and fair manner.

The court determined that the appropriate sentence for Ridden was a custodial term of ten years, with a non-parole period of seven years. This sentence reflected the seriousness of the offences, the need for deterrence and rehabilitation, and the special considerations applicable to a young offender. The court's decision also took into account the aggregate nature of the offences, ensuring that the overall sentence was proportionate and just. The detailed reasoning provided by the court offers guidance for similar cases involving multiple serious offences and young offenders.

Orders

Orders of the court

Sentence

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Ridden [2016] NSWDC 2

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Pham [2015] HCA 39
Citation 1 (Para 32)

…quires careful consideration of this and other decisions of appellate courts, but as Justices Bell and Gageler noted recently in The Queen v Pham [2015] HCA 39 at [46], “…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be preci…
Director of Public Prosecutions (NSW) v Mawad [2015] NSWCCA 227
Citation 2 (Para 51)

…st, however, a Judge is entitled to be sceptical of conclusions unsupported by any factual detail: Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 at [39].…
Barbaro v The Queen [2014] HCA 2
Citation 3 (Para 41)

…application of sentencing principles, but every offender and every offence is different: See Hili v The Queen (2010) 242 CLR 52; Barbaro v The Queen (2014) 253 CLR 58 at [74]; and most recently, The Queen v Pham [2015] HCA 39, per Bell and Gageler JJ at [47].…
CM v R [2013] NSWCCA 341
Citation 4 (Para 78)

…guilty pleas. When I come to fix the aggregate sentence I will ensure that any discount allowed is not eroded by the process of accumulation: CM v R [2013] NSWCCA 341 at [44].…
Munda v Western Australia [2013] HCA 38
Citation 5 (Para 67)

…d, where possible, afford such protection as can be afforded by the state to the vulnerable against repetition of violence: Munda v Western Australia (2013) 249 CLR 600.…
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Citation 6 (Para 15)

…priate penalty for the offence to which they relate: Attorney General’s Application No. 1 (2002) 56 NSWLR 146; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. The court does not “in any sense” impose sentences for that offence: Attorney General’s Application No. 1 at [68]. The matters on…
R v Windle [2012] NSWCCA 222
Citation 7 (Para 68)

…severely. However a proper purpose of the criminal law is not to give effect to the irrational prejudices of ill-informed public opinion: R v Windle [2012] NSWCCA 222 at [42]; R v Ryan (2001) 206 CLR 267 at [46].…
Hili v The Queen [2010] HCA 45
Citation 8

…tions (NSW) v Tony Mawad [2015] NSWCCA 227 Do v R [2010] NSWCCA 182 Gill v The Queen [2010] NSWCCA 236 Grube v R [2005] NSWCCA 140 Hili v The Queen (2010) 242 CLR 520 Johnson v R [2010] NSWCCA 124 Knight v R [2005] NSWCCA 253 Legge v R [2007] NSWCCA 244 Lowe v The Queen (1984) 154 CLR 606 M A K & M S K v R [2006] NSW…
Gill v R [2010] NSWCCA 236
Citation 9 (Para 62)

…r, urged I find that Judge Neilson’s sentences were manifestly inadequate and therefore should not be taken into account by me. In Gill v The Queen [2010] NSWCCA 236 Justice McColl noted the unattractiveness of responding to one wrong decision by making another wrong decision. As a Judge of this Court, I do not have…
Do v R [2010] NSWCCA 182
Citation 10 (Para 25)

…t danger or serious injury. Their possession, even if not then loaded, creates a high risk to the safety of the public and arresting officers: Do v R [2010] NSWCCA 182. This is a matter highlighted by Constable Lawler in his Victim Impact Statement: exhibit A, tab 8.…
Johnson v R [2010] NSWCCA 124
Citation 11 (Para 65)

…s more or less objectively culpable than others. A lookout can be distinguished from those who use weapons and directly threaten victims: Johnson v R [2010] NSWCCA 124. So far as the 23 September matters are concerned Ms Ridden is not sentenced for taking Mr Brighton’s car, only its subsequent destruction. Ms Ridden…
Legge v R [2007] NSWCCA 244
Citation 12 (Para 32)

…R v Henry (1999) 46 NSWLR 346. The 23 September robbery matters clearly fall above that guideline. However, I note, as Spigelman CJ said in Legge v R [2007] NSWCCA 244 at [59]: “a guideline is not a tramline.” The consistent application of principle requires careful consideration of this and other decisions of appel…
Cahyadi v R [2007] NSWCCA 1
Citation 13

…R [2013] NSWCCA 115, Bathurst CJ at [22] Attorney General’s Application No. 1 (2002) 56 NSWLR 146 Barbaro v The Queen (2014) 253 CLR 58 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 CM v R [2013] NSWCCA 341 Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 Do v R [2010] NSWCCA 182 Gill v T…
R v MAK [2006] NSWCCA 381
Citation 14 (Para 39)

…also crush any possibility for their future, induce a feeling of hopelessness and destroy any expectation of useful life after release: MAK & MSK v R [2006] NSWCCA 381.…
R v Krstic [2005] NSWCCA 391
Citation 15 (Para 24)

…f the offence: R v Thurgar (1990) 51 A Crim R 109. The Firearms Act 1996 (NSW) aims to deter and punish possession of firearms per se: R v Krstic [2005] NSWCCA 391. Thus where, as here, the offender possesses a firearm to assist in other crimes the criminality of the offence is even more serious.…
R v Knight [2005] NSWCCA 253
Citation 16 (Para 39)

…ce in the administration of justice requires the Court to avoid any suggestion that there is some sort of discount for multiple offending: Knight v R [2005] NSWCCA 253. On the other hand, a Judge does not simply add up the sentences one on top of the other. That is because of the compounding effect on the severity o…
Markarian v The Queen [2005] HCA 25
Citation 17 (Para 15)

…be appropriate. The court does so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51]-[54]. That increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1 at […
R v Grube [2005] NSWCCA 140
Citation 18 (Para 15)

…at [39] – [42]. Sometimes, as here, that increase can be substantial: Attorney General’s Application No. 1 at [18]; see also R v Grube [2005] NSWCCA 140.…
Weininger v The Queen [2003] HCA 14
Citation 19 (Para 75)

…attempt to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment”: Weininger v The Queen (2003) 212 CLR 629 .…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 20 (Para 15)

…take these matters into account when determining the appropriate penalty for the offence to which they relate: Attorney General’s Application No. 1 (2002) 56 NSWLR 146; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. The court does not “in any sense” impose sentences for that offence: Atto…
R v Simpson [2001] NSWCCA 534
Citation 21 (Para 74)

…period for which she should be imprisoned must also properly reflect the gravity of her offences and the manifold purposes of sentencing: R v Simpson[2001] NSWCCA 534; 53 NSWLR 704 at 717 [59].…
R v Qutami [2001] NSWCCA 353
Citation 22 (Para 48)

…not on oath and repeated second hand is put forward as evidence going to an assessment of the objective circumstances of the offences: See R v Qutami [2001] NSWCCA 353.…
Ryan v The Queen [2001] HCA 21
Citation 23

…ott (1933) 50 CLR 228 at 256 per Evatt J R v Windle [2012] NSWCCA 222 at [42] The Queen v Olbrich (1999) 199 CLR 270 The Queen v Pham [2015] HCA 39 The Queen v Ryan (2001) 206 CLR 267 Veen v The Queen (No 2) (1988) 164 CLR 465 Weininger v The Queen (2003) 212 CLR 629 Texts Cited: Victorian Sentencing Advisory Council, Doe…
R v Thomson; R v Houlton [2000] NSWCCA 383
Citation 24 (Para 34)

…plea had some utilitarian value but its lateness means that only a reduction of 10% in the otherwise appropriate sentence can be allowed: R v Thomson (2000) 49 NSWLR 383.…
R v Olbrich [1999] HCA 54
Citation 25 (Para 49)

…ave the matter taken into account must bring that matter to the attention of the judge and, if necessary, call evidence about it: The Queen v Olbrich (1999) 199 CLR 270 at [25]. In such matters a sentencing judge “may not take facts into account in a way that is adverse to the interests of the accused unless those fa…
Regina v Simpson [1999] NSWCCA 367
Citation 26 (Para 74)

…he should be imprisoned must also properly reflect the gravity of her offences and the manifold purposes of sentencing: R v Simpson[2001] NSWCCA 534; 53 NSWLR 704 at 717 [59].…
R v Henry [1999] NSWCA 111
Citation 27 (Para 32)

…Another important guide is the judgment of the Court of Criminal Appeal in R v Henry (1999) 46 NSWLR 346. The 23 September robbery matters clearly fall above that guideline. However, I note, as Spigelman CJ said in Legge v R [2007] NSWCCA 244 at [59]: “a guideline is not a tramline.” The consistent application of prin…
Pearce v The Queen [1998] HCA 57
Citation 28

…Queen (1984) 154 CLR 606 M A K & M S K v R [2006] NSWCCA 381 Markarian v The Queen (2005) 228 CLR 357 Munda v Western Australia (2013) 249 CLR 600 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Anderson NSWCCA (unreported, 25 March 1993) R v Henry (1999) 46 NSWLR 346 R v Krstic [2005]…
Postiglione v the Queen [1997] HCA 26
Citation 29 (Para 38)

…o ensure that the aggregation of all the sentences is a “just and appropriate measure of the total criminality involved”: Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J; Cahyadi v R [ 2007] NSWCCA; 1 (2007) 168 A Crim R 41.…
Veen v The Queen (No 2) [1988] HCA 14
Citation 30 (Para 44)

…as I must give greater weight to, and place additional focus on, retribution, deterrence and the protection of the community: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.…
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 33
Citation 31 (Para 51)

…t apply a judge does not ignore the rules the policy and rationale underlying those rules: R v War Pensions Entitlement Appeal Tribunal; ex parteBott (1933) 50 CLR 228 at 256, per Evatt J. There is no reason to doubt the bona fides of Ms Vander Reest, however, a Judge is entitled to be sceptical of conclusions unsup…
Lowe v R [1984] HCA 46
Citation 32

…be v R [2005] NSWCCA 140 Hili v The Queen (2010) 242 CLR 520 Johnson v R [2010] NSWCCA 124 Knight v R [2005] NSWCCA 253 Legge v R [2007] NSWCCA 244 Lowe v The Queen (1984) 154 CLR 606 M A K & M S K v R [2006] NSWCCA 381 Markarian v The Queen (2005) 228 CLR 357 Munda v Western Australia (2013) 249 CLR 600 Pearce v The Quee…
The Queen v Olbrich [1999] HCA 5418
Citation 33 (Para 49)

…e party seeking to have the matter taken into account must bring that matter to the attention of the judge and, if necessary, call evidence about it: The Queen v Olbrich (1999) 199 CLR 270 at [25]. In such matters a sentencing judge “may not take facts into account in a way that is adverse to the interests of the accused unl…

Legislation Cited

Crimes (Administration of Sentences) Act 1999 (NSW) 29(3)
2 mentions (from Para 1)
Crimes Act 1900 (ACT) 166
2 mentions (from Para 1)
Evidence Act 1995 (Cth) 7(1)
2 mentions (from Para 47)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Firearms Act 1996 (TAS)
1 mention
Mental Health Act 2007 (NSW)
1 mention (from Para 55)

Medium Neutral Citation:	R v Ridden [2016] NSWDC 2
Hearing dates:	17 December 2015
Date of orders:	29 January 2016
Decision date:	29 January 2016
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentence
Catchwords:	sentencing; purposes of sentencing; armed robbery; assault police; firearm possession; multiple offences, totality principle; parity; special circumstances; deterrence for young offenders; applicability of Evidence Act 1995 (NSW); aggregate sentence
Legislation Cited:	s 60(1), s 60(2), s 97(2), s 192J, s 195(1A)(b) Crimes Act 1900 (NSW) s 166 Criminal Procedure Act 1985 (NSW) s 3, s 10A, s 137 Crimes (Administration of Sentences) Act 1999 (NSW) s 29(3) Crimes (Sentencing Procedure) Act 1999 (NSW) Evidence Act 1995 (NSW) s 7(1), s 65(3) Firearms Act 1996 (NSW)
Cases Cited:	Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22] Attorney General’s Application No. 1 (2002) 56 NSWLR 146 Barbaro v The Queen (2014) 253 CLR 58 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 CM v R [2013] NSWCCA 341 Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 Do v R [2010] NSWCCA 182 Gill v The Queen [2010] NSWCCA 236 Grube v R [2005] NSWCCA 140 Hili v The Queen (2010) 242 CLR 520 Johnson v R [2010] NSWCCA 124 Knight v R [2005] NSWCCA 253 Legge v R [2007] NSWCCA 244 Lowe v The Queen (1984) 154 CLR 606 M A K & M S K v R [2006] NSWCCA 381 Markarian v The Queen (2005) 228 CLR 357 Munda v Western Australia (2013) 249 CLR 600 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Anderson NSWCCA (unreported, 25 March 1993) R v Henry (1999) 46 NSWLR 346 R v Krstic [2005] NSWCCA 391 R v Qutami [2001] NSWCCA 353 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Storey [1998] 1 VR 359 R v Thomson (2000) 49 NSWLR 383 R v Thurgar (1990) 51 A Crim R 109 R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256 per Evatt J R v Windle [2012] NSWCCA 222 at [42] The Queen v Olbrich (1999) 199 CLR 270 The Queen v Pham [2015] HCA 39 The Queen v Ryan (2001) 206 CLR 267 Veen v The Queen (No 2) (1988) 164 CLR 465 Weininger v The Queen (2003) 212 CLR 629
Texts Cited:	Victorian Sentencing Advisory Council, Does Imprisonment Deter? A Review of the Evidence, (April 2011) J Trevena and D Weatherburn, “Does the first prison sentence reduce the risk of further offending?” (October 2015) 187 Crime and Justice Bulletin NSW Bureau of Crime Statistics and Research D Weatherburn, J Hua and S Moffat, “How much crime does prison stop? The incapacitation effect of prison on burglary” (January 2006) 93 Crime and Justice Bulletin NSW Bureau of Crime Statistics and Research W Wan, S Moffatt, C…