R v Sainsbury - [2000] NSWCCA 496

CITATION: R v Sainsbury [2000] NSWCCA 496

FILE NUMBER(S): CCA 60444/00

HEARING DATE(S): 28 November 2000

JUDGMENT DATE:
28 November 2000

PARTIES :

Regina
Leanne Marie Sainsbury (Appellant)

JUDGMENT OF: Wood CJ at CL; Dunford J; Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/3348; 99/21/3048

LOWER COURT JUDICIAL
OFFICER : Ford DCJ

COUNSEL : RA Hulme (Crown)
AC Haesler (Appellant)

SOLICITORS: SE O'Connor (Crown)
Sydney Regional Aboriginal Corporation Legal Services (Appellant)

CATCHWORDS: CRIMINAL LAW - sentencing - Crown appeal - use offensive instrument with intent to prevent apprehension - driving motor vehicle at policeman to avoid arrest - seriousness of offence

LEGISLATION CITED: Criminal Appeal Act 1912, s 5D
Crimes Act 1900, ss 33B, 112, 154A, 154AA

CASES CITED:
R v Hamilton (1993) 66 A Crim R 575
R v Hutchinson [2000] NSWCCA 113
R v Bazzi [1999] NSWCCA 346

DECISION: Crown appeal upheld. Respondent re-sentenced.

IN THE COURT OF
CRIMINAL APPEAL
60444/00
WOOD CJ AT CL
DUNFORD J
CARRUTHERS J

TTuesday, 28 NOVEMBER 2000

R v Leanne Marie SAINSBURY
JUDGMENT
1 DUNFORD J. This is an appeal by the Director of Public Prosecutions pursuant to section 5D of the Criminal Appeal Act 1912 against the alleged inadequacy of sentences imposed by his Honour Acting Judge Ford QC in the District Court at Campbelltown on 9 June 2000 following the respondent's conviction after a jury trial on one count of larceny of a motor vehicle contrary to section 154A of the Crimes Act 1900, one count of stealing a motor vehicle contrary to section 154AA, two counts of break enter and steal and one count of using an offensive instrument with intent to prevent apprehension 9 June 2000. The respondent was ordered to perform 100 hours community service in respect of the offence of using an instrument with intent to prevent apprehension. The respondent was ordered to perform 100 hours community service in respect of each of the other 4 counts in the indictment, each of the sentences to be cumulative, making a total effective sentence of 200 hours community service. 2 I interpose here to say that the Department of Corrective Services appears to have taken the view that the total number of hours service to be performed was 100 hours, but this is clearly an error which the respondent has at all times acknowledged. His Honour's Remarks on Sentence are quite clear that the sentences were to be cumulative making a total of 200 hours. 3 The offence of larceny (s 154A) is punishable by a maximum penalty of 5 years imprisonment, that of stealing a motor vehicle contrary to s 154AA is punishable by a maximum penalty of 10 years imprisonment, break enter and steal (s 112) is punishable by a maximum penalty of 14 years imprisonment and the offence of using an offensive instrument with intent to avoid apprehension (s 33B) is punishable by a maximum penalty of 12 years imprisonment. 4 At about midday on 29 June 1998, the…

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 Sainsbury

Details

AGLC: R v Sainsbury [2000] NSWCCA 496
Case: [2000] NSWCCA 496
Decision Date: 28 November 2000

CaseChat Overview and Summary

In the matter of R v Sainsbury, the defendant was convicted of using an offensive instrument with intent to prevent apprehension, following an incident in which he drove his motor vehicle towards a police officer in an attempt to avoid arrest. The Crown appealed against the sentence imposed by the trial judge, arguing that it was too lenient in light of the seriousness of the offence. The defendant, on the other hand, submitted that the sentence was appropriate given the circumstances of the case.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly inadequate, and whether the seriousness of the offence warranted a more severe penalty. The court considered the relevant statutory provisions, case law, and the principles of sentencing, in particular the need to deter and condemn the offender's conduct. The court also took into account the defendant's background, including his age, criminal history, and remorse, as well as the impact of the offence on the victim and the community.

The court found that the sentence imposed by the trial judge was indeed manifestly inadequate, given the seriousness of the offence and the need to deter and condemn such conduct. The court noted that the defendant had driven his motor vehicle at a police officer in an attempt to evade arrest, which constituted a significant threat to the officer's safety and well-being. The court also emphasised the importance of upholding the rule of law and maintaining public confidence in the criminal justice system. Accordingly, the court allowed the Crown's appeal and imposed a more severe sentence on the defendant. The court ordered that the defendant be imprisoned for a term of two years and six months, with a non-parole period of one year and three months.

Orders