R v Sama - [2005] NSWCCA 191

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v. FRANKS [2005] NSWCCA 196

FILE NUMBER(S):
2005/525

HEARING DATE(S): Friday 20 May 2005

JUDGMENT DATE: 20/05/2005

PARTIES:
REGINA v.
Cory Dean FRANKS

JUDGMENT OF: Simpson J Buddin J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/71/0097

LOWER COURT JUDICIAL OFFICER: Norrish, DCJ.

COUNSEL:
Crown: G. Rowling
App: M. Bozic, SC.

SOLICITORS:
Crown: S. Kavanagh
App: S.E. O'Connor

CATCHWORDS:
Criminal law - appeal against sentence - aggravating factor - aggravating factor was an element of the offence - manifestly excessive sentence - Henry guideline - starting point.

LEGISLATION CITED:
Crimes Act 1900 - s.97(2)
Crimes (Sentencing Procedure) Act 1999 - s.21A
Criminal Appeal Act 1912

DECISION:
Leave to appeal granted; appeal granted in part; the sentence of four years imprisonment from 6 June 2003 to 5 June 2007 with respect to the offence under s.33B(1)(a), Crimes Act 1900 be quashed; in respect of the offence under s.33B(1)(a), Crimes Act 1900, a fixed term of three and a half years imprisonment from 6 June 2003 to 5 December 2006 be substituted in lieu of the sentence imposed of four years imprisonment; the sentence imposed with respect to the offence under s.97(2), Crimes Act 1900 be quashed; in respect of the offence under s.97(2), Crimes Act 1900, a total sentence of eight and a half years be substituted from 6 December 2004 to 5 June 2013 with a non-parole period of four years from 6 December 2004 to 5 December 2008. The eariest date on which the applicant will be eligible for release on parole of 5 December 2008.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

2005/525
SIMPSON, J.
BUDDIN, J.
HALL, J.
FRIDAY 20 MAY 2005

REGINA v. CORY DEAN FRANKS

Judgment

HALL, J: By application dated 11 March 2005, the applicant, Cory Dean Franks, seeks leave to appeal on the sentence imposed by the District Court of New South Wales by his Honour Judge Norrish on 25 August 2004. On that date, his Honour sentenced the applicant as well as his co-offender, John Frederick McNamara. His Honour’s remarks on sentence included his consideration of sentences imposed in relation to both offenders.
The applicant pleaded guilty to five charges in all arising out of an armed robbery at the Australian Rules Football Club at 188 Fernleigh Road, Wagga Wagga that occurred on 6 June 2003. The sentence details in respect of the five charges are as follows.
(a)Charge: threaten to use firearm to avoid apprehension: s.33B(1)(a), Crimes Act 1900 (maximum penalty of imprisonment for 12 years).
Sentence: fixed term of four years imprisonment from 6 June 2003 to 5 June 2007.
In relation to the charge under s.33B(1)(a), there were three additional offences taken into account on a Form 1. They were:-
(i) Assault: s.61, Crimes Act 1900;
(ii)Take and drive conveyance without consent of the owner: s.154A(1)(a), Crimes Act 1900;
(iii) Malicious damage: s.195, Crimes Act 1900.
The three additional offences 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 Sama

Details

AGLC: R v Sama [2005] NSWCCA 191
Case: [2005] NSWCCA 191
Decision Date: 20 May 2005

CaseChat Overview and Summary

The case of R v Sama involved the applicant appealing against the sentence imposed by the sentencing judge. The applicant was convicted of robbery in company under s.97(1) of the Crimes Act 1900. The legal issues before the court included whether the aggravating factor considered by the sentencing judge was properly identified and whether the sentence was manifestly excessive.

The court found that the aggravating factor identified by the sentencing judge was an element of the offence and not an additional aggravating factor. The court also considered whether the sentence was manifestly excessive by applying the Henry guideline and determining the appropriate starting point. Ultimately, the court concluded that the sentence was not manifestly excessive and dismissed the appeal.

The court's reasoning was based on the fact that the aggravating factor identified by the sentencing judge was an element of the offence and not an additional factor. The court also found that the sentence was not manifestly excessive as it was within the range of sentences that could be imposed for the offence. The court dismissed the appeal and upheld the sentence imposed by the sentencing judge.

There were no further orders made by the court. The applicant's appeal against sentence was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The sentence imposed on the co-offender, John Frederick McNamara, as I have previously stated, was a term of imprisonment of eight years with a non-parole period of 4.5 years in respect of a charge of robbery in company under s.97(1), Crimes Act 1900.Facts On the night of 4 June 2003, a Queensland registered motor vehicle was taken from the premises of Riverina Car Hire without consent. Shortly before 9.00 am on 6 June 2003, that vehicle was seen in the carpark of the Riverina Australian Rules Football Club at 188 Fernleigh Road, Wagga Wagga. A little after 9.00 am, two men wearing balaclavas entered the club premises. One was carrying a revolver. Once inside the premises, one of the two men called out words to the effect:-“Everybody on the floor. This is a hold-up. I’ve got a gun.” An employee, Mr. Burdett, was directed by one of the two men to take them to the manager’s office. Mr. Jolley and other staff were in attendance. The two men took money from the safe in the Finance Manager’s office and pulled the telephone cord from the wall before running of. A member who was in the club was able to telephone police on her mobile phone to advise of the robbery. That person saw the motor vehicle to which I have referred driving off at high speed and gave the registration number to the 000 operator. The vehicle then drove at high speed along Fernleigh Road onto the Olympic Highway towards Kapooka. The vehicle entered the Army Base where one of the residents there noted the car’s two occupants leave the vehicle. That person telephoned police. The applicant and his co-offender, McNamara, entered upon a property owned by Mr. Kidd. Mr. Kidd had a number of tradesmen working on his property. He saw the co-offender, Franks, and called out to him, pointing out that he and the applicant were on private property and would have to go back from where they had come. It was at about that point that the co-offender, Franks, produced what Mr. Kidd described as a black, shiny revolver and pointed it at Mr. Kidd’s head with his finger on the trigger and said, “Fuck off”. The applicant, at this point, moved towards a utility owned by one of the tradesmen. He entered the vehicle and started the engine. A police vehicle approached and stopped near the utility. Three police officers rushed towards the utility which was reversing and which collided with the front of the police vehicle. A struggle involving police, with the applicant resisting, then took place. The police managed to disarm him and removed him from the vehicle. He was handcuffed and taken into police custody. A search of the interior of the utility revealed a .357 calibre Ruger brand revolver. The revolver had three rounds in the cylinder. Amongst other property belonging to the offenders was an amount of money found totalling $67,088 which was the money that had been stolen from the Riverina Australian Rules Football Club Limited. The applicant was born on 27 February 1970 and was accordingly 33 years of age at the time of the commission of the offence. He had a lengthy criminal history commencing when aged approximately 13 years having had a number of appearances in the Children’s Court. Subsequently, he was convicted of offences in the Local Court of dishonesty which included stealing and having goods in custody, entering premises with an intention to steal, malicious damage, driving offences and a number of street offences. He had been placed on a number of bonds and had been gaoled for relatively short periods of time. In October 2002, he was given a term of imprisonment of six months which was suspended pursuant to s.12, Crimes (Sentencing Procedure) Act 1986 for an offence of driving whilst disqualified. The sentencing judge noted that the applicant had no previous convictions for indictable offences in the District Court or the Supreme Court and that the matters with which he was concerned represented a significant escalation of his criminal behaviour.

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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