R v Scott - [2001] NSWCCA 377

New South Wales
Court of Criminal Appeal

CITATION :	R v Scott [2001] NSWCCA 377
FILE NUMBER(S) :	CCA 60081/00
HEARING DATE(S) :	10/8/2001
JUDGMENT DATE :	10 August 2001
PARTIES :	Regina Michael Vincent Scott
JUDGMENT OF :	Dowd J at 1; Smart AJ at 34

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	99/31/0383
LOWER COURT JUDICIAL OFFICER :	Morgan DCJ

COUNSEL :	Ms CJ Lyons- Applicant Mr MC Grogan- Crown
SOLICITORS :	Mr DJ Humphreys- Applicant Mr SE O'Connor- Crown
CATCHWORDS :	Appeal against severity of sentence - Aggravated break, enter and steal - Justifiable sense of grievance - Parity
LEGISLATION CITED :	Crimes Act 1900 Crimes (Sentencing Procedures) Act 1999
CASES CITED:	AB v R (1999) 198 CLR 111. Attorney General's Application (No. 1); R v Ponfield & Ors (Unreported, NSWCCA, 16 December 1999). Postiglione v The Queen (1995) 189 CLR 295. R v Barton (Unreported, NSWCCA, 5 March 2001). R v Ellis (1986) 6 NSWLR 603. R v Hodges (Unreported, NSWCCA, 20 August 1997). Thompson v Houlton (2000) 29 NSWLR 383.
DECISION :	1. Leave to appeal granted; and 2. The sentence of imprisonment imposed by Morgan DCJ be quashed, and that in lieu thereof, a sentence be imposed of imprisonment for a period of five-and-a-half years, commencing on 16 August 1999 and concluding on 15 February 2005, with a non-parole period of three-and-a-half years to date from 16 August 1999 and to expire on 15 February 2003.

IN THE COURT OF
CRIMINAL APPEAL

60081/00

DOWD J
SMART AJ

10 August 2001

Regina v Michael Vincent SCOTT

JUDGMENT

1    DOWD J: On arraignment at the Newcastle District Court, the applicant, Michael Vincent Scott, pleaded guilty before Coolahan DCJ to a single charge of aggravated break, enter and steal contrary to s112(2) of the Crimes Act 1900 (‘the Act’). He adhered to that plea before Morgan DCJ at the East Maitland District Court on 17 February 2000, and on 18 February 2000, was sentenced by Her Honour to seven years imprisonment with a minimum term of four years and six months. At the time of sentencing, Morgan DCJ took into account thirteen matters on a Form 1. The offence upon which he was sentenced carried a maximum penalty of twenty years imprisonment.

2    The matters on the Form 1 relate to various matters, including contravening a domestic violence order, goods in custody, attempting to obtain money by deception, maliciously destroying property, and a high range PCA. There are two break, enter and steal matters, but the details of those matters were not before Her Honour.

3    More seriously, at the time of the commission of the subject offence, the applicant was on bail in relation to most of the matters on the Form 1.

4    The facts of the case are set out as follows. The victim, a resident of Cessnock, went to bed at about 2:00am on Tuesday 9 June 1999, having checked that both front and back…

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 Scott

Details

AGLC: R v Scott [2001] NSWCCA 377
Case: [2001] NSWCCA 377
Decision Date: 10 August 2001

CaseChat Overview and Summary

The case of R v Scott involved the defendant, Scott, who was appealing against the severity of the sentence imposed on him following his conviction for aggravated break, enter and steal. The case was heard in the Court of Appeal. The appeal centred around the quantum of the sentence, with Scott arguing that it was excessively harsh in light of the circumstances of the offence and his personal situation.

The legal issues before the court were whether the sentence was manifestly excessive and whether the trial judge had adequately considered the principles of parity in sentencing similar offences. The court was also required to examine whether the trial judge had properly considered the defendant's sense of grievance as a mitigating factor. The defence argued that the trial judge had failed to appropriately weigh these factors, leading to an unjust sentence.

The Court of Appeal held that the sentence was indeed manifestly excessive, taking into account the principles of parity and the defendant's justifiable sense of grievance. The court found that the trial judge had not adequately considered these mitigating factors and had not provided sufficient justification for the severity of the sentence. Consequently, the appeal was allowed, and the case was remitted to the trial court for resentencing. The Court of Appeal emphasised the importance of a balanced approach to sentencing, ensuring that all relevant factors are appropriately weighed and justified.

Orders