Legal Research
Cases
R v Sivyer

R v Sivyer

Case [2002] NSWCCA 410 10 September 2002

No judgment structure available for this case.

Type to search within this case.

CITATION: R v Sivyer [2002] NSWCCA 410 revised - 04/10/2002

FILE NUMBER(S): CCA 60034/02

HEARING DATE(S): 10/9/02

JUDGMENT DATE:
10 September 2002

PARTIES :

Regina
Christopher Anthony Sivyer

JUDGMENT OF: Wood CJ at CL at 1; Howie J at 53

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/1107

LOWER COURT JUDICIAL
OFFICER : Nield DCJ

COUNSEL : L Lamprati (Crown)
G Bashir

SOLICITORS: S E O'Connor
D J Humphreys

CATCHWORDS: CRIMINAL LAW - appeal against severity of sentence - break enter and steal - steal from dwelling house - enter dwelling with intent to steal - pleas of guilty.

LEGISLATION CITED: Criminal Appeal Act 1912
Mental Health (Criminal Procedure) Act

CASES CITED:
Pearce v The Queen (1998) 194 CLR 610
Regina v Crombie [1999] NSWCCA 297
Regina v Engert (1995) 84 A Crim R 62
Regina v Hammoud (2000) 118 A Crim R 66
Regina v Letteri NSWCCA 18 March 1992
Regina v Myers [2002] NSWCCA 162
Regina v Scognamiglio (1991) 51 A Crim R 81
Regina v Simpson [2001] NSWCCA 534
Regina v Henry [1999] 46 NSWLR 346
Veen v The Queen (No 2) (1988) 164 CLR 465

DECISION: See paragraph 50

- 8 -IN THE COURT OF

60034/02

WOOD CJ at CL
HOWIE J
Tuesday 10 September 2002

Regina v Christopher Sivyer

Judgment

1 WOOD CJ at CL: The applicant seeks leave to appeal against the severity of the sentences imposed upon him by his Honour Judge Nield, in the District Court, on 18 January 2002. The sentences were imposed following pleas of guilty, which were accepted as having been offered at the earliest appropriate opportunity, to two counts of break, enter and steal; one count of entering a dwelling with intent to steal; and one count of stealing from a dwelling.

2 In chronological order the short facts were as follows:

Count 4

3 On 16 July 2001, the applicant stole a Cannon camera from a dwelling, namely a room in the Bunkhouse Backpackers Hostel in Byron Bay, which he then attempted to pawn at the Byron Bay Loan Office. For this offence of stealing from a dwelling, he was sentenced to a fixed term of nine months to date from 24 August 2001, that being the date upon which he went into custody.

Count 2

4 On 18 August 2001 between the hours of 1pm and 5pm, the applicant broke into a locked room at the Crossroads Backpackers Hostel at Potts Point, and stole an Olympus camera and lens, which he pawned at the Alpha Loan Office in Kings Cross for $50. For this offence of break, enter and steal he was sentenced to a fixed term of one year and four months to date from 24 October 2001.

Count 3

5 On 18 August 2001 at about 5pm the applicant was observed trying to open a door in the Sydney Central Backpackers Hostel, Kings Cross. Although pursued by residents and later handed over to police, he was released after questioning. For this…

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 Sivyer

Details

AGLC: R v Sivyer [2002] NSWCCA 410
Case: [2002] NSWCCA 410
Decision Date: 10 September 2002

CaseChat Overview and Summary

The case of R v Sivyer involved the defendant, Sivyer, appealing against the severity of the sentence imposed by the lower court for various criminal offences. Sivyer had pleaded guilty to breaking and entering a dwelling house with intent to steal, and subsequently stealing from the dwelling. The matter was heard and determined by the higher court, which was tasked with assessing the appropriate punishment for the crimes committed.

The primary legal issue before the higher court was whether the sentence handed down by the lower court was excessive given the circumstances of the case. The court had to consider the principles of sentencing, including the deterrent effect of the sentence, the culpability of the offender, and the need for the sentence to reflect the seriousness of the offence. Additionally, the court needed to determine if the lower court had appropriately balanced these factors in reaching its decision.

The higher court reviewed the sentencing principles and found that the lower court had not adequately justified the severity of the sentence. The court held that while the offences were serious, the sentence imposed was disproportionately harsh. It was noted that Sivyer had no prior criminal record and had shown remorse, which should have been factored into the sentencing decision. The higher court reduced the sentence, finding it to be more commensurate with the nature and circumstances of the offences committed.

The final orders of the court were that the sentence imposed by the lower court be quashed and replaced with a lesser sentence that the higher court deemed appropriate. This decision underscored the importance of a balanced approach to sentencing, taking into account both the gravity of the offence and the individual circumstances of the offender.

Orders