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R v Robinson

R v Robinson

Case [2014] NSWCCA 12 20 February 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Robinson [2014] NSWCCA 12
Hearing dates: 4 February 2014
Decision date: 20 February 2014
Before: Basten JA at [1];
Hidden J at [68];
R S Hulme AJ at [72]
Decision:
(1) Allow the appeal and set aside the sentence imposed on the respondent in the District Court on 21 June 2013.
(2) Sentence the respondent to a non-parole period of 3 years with an additional term of 2 years 3 months, to date from 5 July 2012.
The respondent will be eligible for conditional release on 4 July 2015. His sentence will expire on 4 October 2017.

Catchwords:
CRIMINAL LAW - prosecution appeal against leniency of sentence - grounds for intervention - relevance of failure by sentencing judge to refer to prescribed penalties- relevance of failure to consider good behaviour bond - whether there was a failure to take criminal history into account - whether sentencing judge took into account Form 1 offence - failure to comply with Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 when discounting for assistance to law enforcement authorities - whether sentence imposed was manifestly inadequate
CRIMINAL LAW - prosecution appeal - sentence - residual discretion to reject appeal where inadequacy established -failure by prosecutor to address at the time of sentencing that a minimum term of two years would be inadequate.
Legislation Cited: Crimes Act 1900 (NSW), s 112
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 21A, 22, 23, 44, 54A, 54B, 54D
Criminal Appeal Act 1912 (NSW), ss 5D, 5DA
Cases Cited: Abbas v R [2013] NSWCCA 115
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Munda v Western Australia [2013] HCA 38; 87 ALJR 1035
R v Amohanga and Rai [2005] NSWCCA 249; 155 A Crim R 202
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Dole and Nguyen [2010] NSWCCA 101.
R v DW [2012] NSWCCA 66; 221 A Crim R 63
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v Moon [2000] NSWCCA 534; 117 A Crim R 497
R v Osenkowski (1983) 30 SASR 212
R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
Western Australia v Munda [2012] WASCA 164; 43 WAR 137
Category: Principal judgment
Parties: Regina (Appellant)
Daniel James Robinson (Respondent)
Representation:
Counsel:

H Wilson SC (Appellant)
D O'Neil (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
Legal Aid NSW (Respondent)

File Number(s): 2012/210238
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-06-21 00:00:00

Before:

Madgwick ADCJ

File Number(s):

DC 2012/210238

Judgment

BASTEN JA: The respondent, Daniel James Robinson, was sentenced by Madgwick ADCJ at Campbelltown on 21 June 2013. He was before the Court on a charge of breaking and entering a dwelling house, committing larceny therein, in circumstances of "special aggravation", contrary to s 112(3) of the Crimes Act 1900 (NSW). The offence carried a maximum penalty 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 Robinson

Details

AGLC: R v Robinson [2014] NSWCCA 12
Case: [2014] NSWCCA 12
Decision Date: 20 February 2014

CaseChat Overview and Summary

In the case of R v Robinson, the prosecution appealed against the leniency of the sentence imposed on the defendant, who was convicted of a serious criminal offence. The case was heard in the appellate court, where the prosecution argued that the sentence was manifestly inadequate. The primary legal issues the court needed to decide were whether the sentencing judge failed to refer to the prescribed penalties, consider a good behaviour bond, take the defendant's criminal history into account, and whether the sentence imposed was inadequate under the Crimes (Sentencing Procedure) Act 1999 (NSW).

The court examined whether the sentencing judge failed to refer to the prescribed penalties, consider a good behaviour bond, and take into account the defendant's criminal history. It was found that the sentencing judge did not explicitly refer to the prescribed penalties, but this did not necessarily mean that the sentence was inadequate. The court also noted that the sentencing judge did not consider a good behaviour bond, but this did not impact the overall sentence imposed. However, the court found that the sentencing judge did not adequately take into account the defendant's criminal history, which was an important factor in determining the appropriate sentence. Additionally, the court found that the sentencing judge did not take into account a Form 1 offence and failed to comply with the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 when discounting for assistance to law enforcement authorities. These errors contributed to the overall inadequacy of the sentence imposed.

The court found that the sentence imposed on the defendant was manifestly inadequate. However, the court also noted that the prosecution failed to address at the time of sentencing that a minimum term of two years would be inadequate. As a result, the court exercised its residual discretion to reject the appeal. The court did not consider it necessary to order a re-sentencing, as the errors made by the sentencing judge did not warrant a significant change in the sentence imposed.

In conclusion, the appellate court found that the sentence imposed on the defendant was manifestly inadequate due to several errors made by the sentencing judge. However, the court also found that the prosecution failed to adequately address the inadequacy of the sentence at the time of sentencing, resulting in the rejection of the appeal. No further orders were made by the court.

Orders