R v Shaw - [2000] NSWCCA 326

CITATION: R v Shaw [2000] NSWCCA 326

FILE NUMBER(S): CCA 60223/99

HEARING DATE(S): 23/08/00

JUDGMENT DATE:
23 August 2000

PARTIES :

Regina
Lee Anthony Shaw

JUDGMENT OF: Heydon JA at 1, 27; Smart AJ at 25; Ireland AJ at 26

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/1188

LOWER COURT JUDICIAL
OFFICER : Backhouse DCJ

COUNSEL : Applicant in person
P Hock (Respondent)

SOLICITORS: Applicant in person
S E O'Connor (Respondent)

CASES CITED:
R v Henry (1999) 46 NSWLR 346
R v Morgan (1993) 70 A Crim R 368
Veen v R (No 2) (1988) 164 CLR 465

DECISION: See para 24

IN THE COURT OF

CRIMINAL APPEAL

60223/99

HEYDON JA
SMART AJ
IRELAND AJ

Wednesday, 23 August 2000

REGINA v Lee Anthony SHAW

JUDGMENT

1    HEYDON JA:

This is an application by Lee Anthony Shaw for leave to appeal against sentences imposed on him by Backhouse DCJ on 13 April 1999. In substance the sentences were as follows. First, on a charge that on 29 January 1998 the applicant, being armed with an offensive instrument, namely a liquid filled syringe, robbed Terrence Tung-Yep of cash, the applicant was given a head sentence of six years’ penal servitude with a minimum term of three years and an additional term of three years. Secondly, on a charge that on 4 April 1997 the applicant broke into and entered Loyola College Mt Druitt with intent to steal, the applicant was given the same sentence, to be served concurrently. In relation to the first offence, the sentencing judge took into account an offence committed on 30 January 1998 of attempting to rob Eva Abdo of cash at her place of work, a hairdressing salon, by threatening her with a screwdriver.

2    The applicant pleaded guilty to the first and second offences, and asked for the third to be taken into account.
3    The facts of the first two offences are set out sufficiently in the reasons for judgment of the sentencing judge. It need only be noted of the first offence that the syringe was apparently filled with a red liquid; that the applicant told the victim the liquid was blood; that apart from the threats of stabbing with the syringe implicit in the six demands for money which the applicant made, the applicant three times expressly threatened to stab with the syringe; that the victim was alone while the applicant was accompanied by a female companion; that the hour was 10.10pm; and that there were circumstances pointing to premeditation in that, apart from the syringe with which the applicant was armed, he told the victim that he had been following him all day. The offence taken into account took place on the following day. The victim was female. The hour was 6.30pm. The weapon was a screwdriver. The applicant was accompanied by the same co-offender. These offences were committed while the applicant was on parole: he had been released from prison on 22 January 1998.
4    The applicant put…

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 [2000] NSWCCA 326
Case: [2000] NSWCCA 326
Decision Date: 23 August 2000

CaseChat Overview and Summary

This case is an application by Lee Anthony Shaw for leave to appeal against sentences imposed by Backhouse DCJ on 13 April 1999. Shaw pleaded guilty to charges of armed robbery and breaking and entering with intent to steal. The court also took into account an attempted robbery committed by Shaw on the day following the armed robbery. The applicant argued that his sentences should be reduced to fit within sentencing guidelines identified in R v Henry (1999) 46 NSWLR 346. The applicant also argued that the sentence for breaking and entering with intent to steal was excessive.

The court considered the arguments and noted that while the armed robbery offence did not fit perfectly within the guidelines identified in R v Henry, the Crown conceded it fell within the guidelines broadly. The court held that the sentencing judge was not obliged to apply the guidelines, as they were enunciated after Shaw was sentenced. The court also considered the applicant's criminal history and the fact that the offences were committed while Shaw was on parole. The court held that the disparity between the sentence for armed robbery and the guidelines was not such as to point to any error in the discretion of the sentencing judge. The court also held that the sentence for breaking and entering with intent to steal was excessive and substituted a fixed term of two years imprisonment to be served concurrently with the sentence on the robbery charge.

The Court granted leave to appeal and allowed the appeal in part. The sentence for breaking and entering with intent to steal was substituted with a fixed term of two years imprisonment to be served concurrently with the sentence on the robbery charge and to commence on 13 April 1999.

Orders