R v Roberts - [2005] NSWCCA 401

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v ROBERTS [2005] NSWCCA 401

FILE NUMBER(S):
2005/994

HEARING DATE(S): 28 September 2005

JUDGMENT DATE: 22/11/2005

PARTIES:
The Queen
ROBERTS, Troy John

JUDGMENT OF: McClellan CJ at CL Hislop J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1174

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

COUNSEL:
Crown - Mr G Rowling
App - Ms N Mikhaiel

SOLICITORS:

CATCHWORDS:
Criminal Law
Sentencing
Aggravated break, enter and steal
s.112(2) Crimes Act
Flexibility in sentencing
No error of law
Not manifestly excessive
Parity

LEGISLATION CITED:
Crimes Act 1900 (NSW)

DECISION:
Leave to appeal be granted and the appeal be dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2005/994
McCLELLAN CJ at CL
HISLOP J
ROTHMAN J
22 November 2005

REGINA v Troy John ROBERTS

Judgment

McCLELLAN CJ at CL: I agree with Rothman J.
HISLOP J: I agree with Rothman J.
ROTHMAN J: The appellant, Troy John Roberts, seeks leave to appeal against the sentence imposed upon him for aggravated break, enter and steal contrary to the provisions of s.112(2) of the Crimes Act 1900 (NSW). If leave is granted, the appellant seeks to agitate the appeal on the basis that the sentence imposed was manifestly excessive.
Facts
At or about 4.00 am on 15 January 2002 three men, Messrs Sharpe, Patterson and Roberts broke into and entered the Harvey Norman Bathurst Warehouse at Kelso. Each of them was wearing a balaclava. They were carrying a pinch bar (at least one between the three of them) and each of them had a two-way radio device.
Upon entering the warehouse, they collected a number of electrical items and stacked them on trolleys intending to steal them. Unbeknownst to them their entry into the warehouse triggered an alarm system and a security guard was sent to the warehouse. When the security guard entered the warehouse the robbers, unsurprisingly, left. In doing so they left behind the electrical items they had collected and the security guard chased them over a couple of properties towards a caravan park. During the chase the security guard fired two shots, one of which hit one of the men, Mr Sharpe, whom he apprehended. Mr Sharpe was found to be in possession of a two-way radio tuned to channel 28. Messrs Roberts and Patterson escaped and met up with Mr Multari who was driving the getaway car, being the car that Mr Sharpe had hired. The three of them then drove to Sydney and enroute to Sydney they were stopped by police at Lithgow and were arrested. The car in which they were travelling contained the pinch bar wrapped in a plastic bag, a pair of binoculars, a radio scanner and five two-way radios, four of which were tuned to channel 28.
Mr Roberts, at all times, maintained his innocence of the charges against him and continues to maintain his innocence even after conviction. There is no appeal against the conviction. Because…

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 Roberts

Details

AGLC: R v Roberts [2005] NSWCCA 401
Case: [2005] NSWCCA 401
Decision Date: 22 November 2005

CaseChat Overview and Summary

In the case of R v Roberts, the appellant was convicted of aggravated break, enter and steal under section 112(2) of the Crimes Act. The dispute involved the sentencing decision made by the trial judge, which the appellant challenged on the grounds of alleged error of law and manifest excessiveness. The case was heard in the Court of Criminal Appeal.

The primary legal issues before the court were whether the trial judge had erred in law in imposing the sentence and whether the sentence was manifestly excessive. The appellant argued that the trial judge failed to adequately consider the principles of flexibility in sentencing and parity. The respondent maintained that the sentence was appropriate and within the bounds of judicial discretion.

The court found that the trial judge had not erred in law and that the sentence imposed was not manifestly excessive. The court highlighted that the trial judge had considered the relevant factors, including the appellant's criminal history and the nature of the offence. The court also noted that the sentence was consistent with similar cases and that there was no basis to interfere with the exercise of judicial discretion. Consequently, the appeal was dismissed.

No further orders were made by the court.

Orders