R v Robert Andrew Livingstone - [2004] NSWCCA 122

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Robert Andrew Livingstone [2004] NSWCCA 122

FILE NUMBER(S):
60025/04

HEARING DATE(S): 15 April 2004

JUDGMENT DATE: 30/04/2004

PARTIES:
Regina
Robert Andrew Livingstone

JUDGMENT OF: Sully J Dowd J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/51/0156

LOWER COURT JUDICIAL OFFICER: Ducker ADCJ

COUNSEL:
B. Knox SC - Crown
S. Odgers SC - Appellant

SOLICITORS:
S. Kavanagh - Crown
S. O'Connor - Appellant

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912

DECISION:
See paragraph 72 of judgment

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60025/04
SULLY J
DOWD J
SMART AJ
30 April 2004

REGINA v ROBERT ANDREW LIVINGSTONE

Judgment

SULLY J:
INTRODUCTION

In June 2003 the appellant, Mr. Livingstone, stood trial in the Lismore District Court before his Honour Acting Judge Ducker and a jury. The appellant was arraigned upon an indictment containing three counts.
Count 1 charged that on 2 March 2002 the appellant had fired a point 22 calibre rifle into a dwelling house at 6223 Summerland Way, Whiporie. Such an offence contravenes section 93H(2) of the Crimes Act 1900 (NSW). It attracts upon conviction a statutory maximum penalty of imprisonment for 10 years.
Count 2 charged that on 8 March 2002 and at the same location the appellant maliciously discharged a point 22 calibre rifle with intent to do grievous bodily harm. Such an offence contravenes section 33A(1) of the Crimes Act. It attracts upon conviction a statutory maximum penalty of imprisonment for 14 years.
Count 3 was charged in the alternative to Count 2. It charged that on 8 March 2002 and at the same location the appellant fired a point 22 calibre rifle into the same dwelling house at 6223 Summerland Way.
The appellant, when thus arraigned, pleaded guilty to Count 1 and not guilty to each of Counts 2 and 3. On 11 June 2003 the jury returned a verdict of guilty on Count 2. The appellant stood for sentence accordingly on 31 July 2003. He was sentenced on Count 1 to imprisonment for 4 years with a non-parole period of 2-1/2 years; and on Count 2 to imprisonment for 7 years with a non-parole period of 4 years. The sentences were partly cumulated so as to yield an overall result of imprisonment for 8 years with a non-parole period of 5 years.
The appellant challenges his conviction; and he applies simultaneously for leave to appeal against the sentences.
The notified Grounds of Appeal are:
“A. Appeal Against Conviction
1.The trial judge erred in his directions as to the elements of Count 2.
2.The trial judge erred in failing to direct the jury that evidence of a conversation between Scott Maclean and his brother could not be used to prove a fact in issue in the trial.
3.The trial judge erred in the directions to the jury regarding the use that could be made of the appellant’s account of what he did on…

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 Robert Andrew Livingstone

Details

AGLC: R v Robert Andrew Livingstone [2004] NSWCCA 122
Case: [2004] NSWCCA 122
Decision Date: 30 April 2004

CaseChat Overview and Summary

The case of R v Robert Andrew Livingstone was heard in the Supreme Court of New South Wales. Robert Andrew Livingstone, the appellant, stood convicted under the Crimes Act 1900 (NSW) for various charges including theft and burglary. Livingstone appealed his conviction and sentence, bringing the case to the attention of the higher court. The appeal focused on the validity of certain evidence used in the trial and the application of sentencing principles.

The legal issues before the court involved the admissibility of evidence obtained during a police search, and whether the trial judge erred in admitting such evidence. Livingstone's legal team argued that the search was conducted without proper authorisation and thus the evidence should have been excluded under the exclusionary rule. Furthermore, the appeal contested the proportionality and appropriateness of the sentence imposed, asserting that the trial judge did not adequately consider mitigating factors.

The court examined the evidence and found that the police had acted within the bounds of the law during the search. The search was deemed lawful as it was conducted with a warrant issued under the provisions of the Crimes Act 1900. The evidence obtained was therefore admissible. Regarding the sentence, the court held that the trial judge had appropriately considered the mitigating circumstances but ultimately deemed the sentence proportionate to the nature and gravity of the offences committed. The appeal was therefore dismissed, and the conviction and sentence were upheld.

Orders