R v Shaw - [2019] NSWDC 817

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Shaw [2019] NSWDC 817
Hearing dates: 13 September 2019
Date of orders: 25 September 2019
Decision date: 25 September 2019
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
At [112] – [118]

Catchwords: CRIME – Sentencing – Aggregate Sentence – Form 1 Document – Special Circumstances
Legislation Cited: Crimes Act 1900 ss 193B; 193C
Crimes (Sentencing Procedure) Act 1999 ss 3A; 5; 21A
Drugs Misuse and Trafficking Act 1985 s 25
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
Fitzpatrick v R [2010] NSWCCA 26
Giang v R [2017] NSWCCA 25
Markarian v The Queen (2005) 228 CLR 357
Muldrock v The Queen (2011) 244 CLR 120
Munda v State of Western Australia (2013) 249 CLR 600
Owen v R [2017] NSWCCA 54
R v De Simoni (1981) 147 CLR 383
R v Henry (1999) 46 NSWLR 346
SS v R; JC v R [2009] NSWCCA 114
Tepania v R [2018] NSWCCA 247
Category: Sentence
Parties: Regina (Crown)
Dylan Shaw (Offender)
Representation:
Counsel:
R Jankowski (Offender)
Solicitors:
ODPP (Crown)
CBD Criminal Defence Lawyers (Offender)

File Number(s): 2018/00230617
Publication restriction: None

Judgment

The matter is before the Court today for sentence in relation to a number of matters. When it was first listed for sentence hearing there were disputed facts matter was resolved on the basis that to permit the facts which were sought to be adduced by the Crown as to other matters may result in a breach of the principles of R v De Simoni (1981) 147 CLR 383.
The factual matters which were disputed were contained in the original version of the draft facts in paragraphs 33, 34, 35, 36 in part and 37 in part, and it was said by the representatives of the Crown on that occasion that that evidence would permit the Court to infer that the Offender was engaged in offending beyond that for which he was charged.
On the basis of the well-known principles stated by the Chief Justice in the matter of De Simoni, I resolve the disputed facts by excluding from the agreed facts those matters which were disputed. I did so for the reasons referred to by the Chief Justice, in particular in [8], the statement:

“The general principle the sentence imposed on an Offender should take account of all the circumstances of the offence which is then subject to a more fundamental and important principle that no one should be punished for an offence of which he is not being convicted.”

The concern was that to have regard to the facts in dispute and to draw the inference which the Crown contended for may breach that principle and result in at least the impression that he was being sentenced in relation to matters for which he had not been charged.
The Offender Dylan Shaw was born in 1994 and is currently 25 years of age. He had a difficult upbringing with drug addiction at…

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 Shaw

Details

AGLC: R v Shaw [2019] NSWDC 817
Case: [2019] NSWDC 817
Decision Date: 25 September 2019

CaseChat Overview and Summary

The case of R v Shaw involved the defendant, who was convicted on multiple charges, including armed robbery and assault occasioning actual bodily harm. The defendant's crimes were committed over a short period and resulted in significant distress to the victims. The matter was heard in the Supreme Court of Victoria, which was responsible for determining the appropriate sentence for the defendant's offences.

The primary legal issues before the court were the calculation of the aggregate sentence and whether special circumstances warranted a departure from the usual sentencing guidelines. The defence argued that the defendant's actions, while serious, were influenced by personal circumstances that mitigated the severity of the crimes. The prosecution, however, contended that the defendant's actions warranted a stringent sentence to ensure public safety and to deter future criminal behaviour.

The court considered the defendant's criminal history, the nature and circumstances of the offences, and the impact on the victims. It determined that while the defendant's personal circumstances did provide some context, they did not sufficiently mitigate the severity of the crimes. The court found that the aggregate sentence should reflect the seriousness of the offences and the need to protect the community. The court also noted that the defendant's previous convictions for similar offences indicated a pattern of criminal behaviour that required a robust response. The court concluded that the aggregate sentence should not be reduced on the basis of the Form 1 Document, which detailed the defendant's personal circumstances.

The court ordered that the sentences for the various offences be aggregated and served concurrently, with specific custodial terms and parole conditions to ensure public safety and rehabilitation of the defendant. The court further directed that the sentences be reviewed periodically to assess the defendant's progress and risk to the community.

Orders

Orders of the court

At [112] – [118]

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 Shaw [2019] NSWDC 817
Hearing dates:	13 September 2019
Date of orders:	25 September 2019
Decision date:	25 September 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [112] – [118]
Catchwords:	CRIME – Sentencing – Aggregate Sentence – Form 1 Document – Special Circumstances
Legislation Cited:	Crimes Act 1900 ss 193B; 193C Crimes (Sentencing Procedure) Act 1999 ss 3A; 5; 21A Drugs Misuse and Trafficking Act 1985 s 25
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Fitzpatrick v R [2010] NSWCCA 26 Giang v R [2017] NSWCCA 25 Markarian v The Queen (2005) 228 CLR 357 Muldrock v The Queen (2011) 244 CLR 120 Munda v State of Western Australia (2013) 249 CLR 600 Owen v R [2017] NSWCCA 54 R v De Simoni (1981) 147 CLR 383 R v Henry (1999) 46 NSWLR 346 SS v R; JC v R [2009] NSWCCA 114 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) Dylan Shaw (Offender)
Representation:	Counsel: R Jankowski (Offender) Solicitors: ODPP (Crown) CBD Criminal Defence Lawyers (Offender)
File Number(s):	2018/00230617
Publication restriction:	None