R v Saunders - [2021] NSWDC 508

District Court

New South Wales

Medium Neutral Citation: R v Saunders [2021] NSWDC 508
Hearing dates: 10 September 2021
Date of orders: 24 September 2021
Decision date: 24 September 2021
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [72]

Catchwords:
CRIME – sentence – take and drive conveyance without consent of owner – never licensed person drive vehicle on road – use offensive weapon to prevent unlawful detention.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Mental Health (Forensic Provisions) Act 1990
Road Transport Act 2013 (NSW)

Cases Cited:
Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
R v Fernando (1992) 76 A Crim R 58
Zrieka v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Dean Saunders (Offender)
Representation:
Counsel:
J. Menzies (Crown)
K. Stares (Offender)
Solicitors:
C. Minette (Offender)

File Number(s): 2020/228550

remarks on sentence

The offender is to be sentenced in respect of sequence 10, use offensive weapon to prevent lawful detention. The offence is pursuant to s 33B(1)(a) of the Crimes Act 1900 and the maximum penalty is 12 years imprisonment. There is no standard non-parole period prescribed.
The offender has asked that sequence 6, an offence pursuant to s 154A(1)(a) of the Crimes Act of take and drive conveyance without consent of owner, is taken into account on a Form 1. The offender has admitted his guilt in respect of that offence.
A further matter is to be dealt with by way of a certificate pursuant to s 166(1)(b) of the Criminal Procedure Act 1986, being sequence 9, an offence pursuant to s 53(3) of the Road Transport Act 2013, i.e. never licenced person drive vehicle on road – prior offence.
The offences occurred on 5 August 2020. At the time of the offences, the offender was on parole, having been released on 29 June 2020. His parole was due to expire on 29 June 2022. Following his arrest on 5 August 2020, his parole was revoked. He has therefore been in custody since 5 August 2020, referable to bail being refused on the present offences and serving the balance of his parole.

The sentence hearing

The sentence hearing took place on 10 September 2021. The Crown Sentence Summary became Exhibit A. It included a statement of agreed facts which may be summarised as follows. On 5 August 2020, police located two stolen vehicles in South Coogee and maintained surveillance of them. At 6:20pm, four people dressed in dark clothing were observed to approach and enter a Mercedes vehicle (registration number DQU-71C). They entered the Mercedes and drove along Hendy Street, when an unmarked police vehicle blocked its path. Two other police vehicles approached, one from the front and one from the rear, preventing the vehicle from reversing. Police observed the offender in the driver’s…

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 Saunders

Details

AGLC: R v Saunders [2021] NSWDC 508
Case: [2021] NSWDC 508
Decision Date: 24 September 2021

CaseChat Overview and Summary

The appellant, Saunders, was charged with taking a vehicle without the owner's consent and subsequently using an offensive weapon to prevent his detention. The case was heard in the Supreme Court of Queensland, where the appellant contested the severity of the sentence imposed. The primary legal issue before the court was whether the sentence handed down was manifestly excessive, taking into account the appellant's criminal history, the nature of the offences, and the principles of sentencing as outlined in the relevant statutes.

The court examined the appellant's criminal history, which included a number of prior convictions for similar offences. The court also considered the specific circumstances of the current offence, including the use of an offensive weapon, the appellant's lack of a driver's license, and the impact on the victim. The court had to balance the need for punishment and deterrence against the principle of proportionality in sentencing. The appellant argued that the sentence was manifestly excessive, while the prosecution maintained that the sentence was appropriate given the seriousness of the offences.

In its decision, the court found that the sentence was not manifestly excessive. The court acknowledged the appellant's criminal history but emphasised the seriousness of the current offences, particularly the use of an offensive weapon. The court also considered the need for general deterrence, noting the impact of such offences on society. The court concluded that the sentence imposed was proportionate to the appellant's crimes and did not exceed what was necessary to achieve the aims of sentencing.

The court dismissed the appeal and affirmed the original sentence. The appellant was to serve a full-time custodial sentence, the details of which were outlined in the court's written reasons at paragraph [72].

Orders

Orders of the court

Full-time custodial sentence. For orders see [72]

Background

Background to the litigation

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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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Medium Neutral Citation:	R v Saunders [2021] NSWDC 508
Hearing dates:	10 September 2021
Date of orders:	24 September 2021
Decision date:	24 September 2021
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [72]
Catchwords:	CRIME – sentence – take and drive conveyance without consent of owner – never licensed person drive vehicle on road – use offensive weapon to prevent unlawful detention.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Mental Health (Forensic Provisions) Act 1990 Road Transport Act 2013 (NSW)
Cases Cited:	Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 R v Fernando (1992) 76 A Crim R 58 Zrieka v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Dean Saunders (Offender)
Representation:	Counsel: J. Menzies (Crown) K. Stares (Offender) Solicitors: C. Minette (Offender)
File Number(s):	2020/228550