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R v Solomon

R v Solomon

Case [2005] NSWCCA 158 28 April 2005

Sentencing

Criminal Law

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Reported Decision:
153 A Crim R 32

New South Wales

Court of Criminal Appeal

CITATION:
Regina v Solomon [2005] NSWCCA 158

HEARING DATE(S): 22/04/2005

JUDGMENT DATE:

28 April 2005

JUDGMENT OF:
Grove J at 1; Howie J at 2; Latham J at 33

DECISION:
Leave to appeal is granted but the appeal is dismissed.

CATCHWORDS:
Criminal Law - Sentencing - s 21A(2) aggravating factors - harm suffered by victims of armed robbery offences.

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act 1999 - s 21A

CASES CITED:
R v Youkhana [2004] NSWCCA 412
R v Henry (1999) 46 NSWLR 346
R v Wickham [2004] NSWCCA 193
R v Tozer [2003] NSWCCA 72
R v Trad [2003] NSWCCA 213
R v Dorsett [2002] NSWCCA 326
R v Gonzales [2002] NSWCCA 287

PARTIES:
Regina v Donald John Solomon

FILE NUMBER(S):
CCA 2004/3315 CCAP

COUNSEL:
V. Lydiard - Crown
P. Winch - Applicant

SOLICITORS:
S. Kavanagh - Crown
S.E. O'Connor - Applicant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0940

LOWER COURT JUDICIAL OFFICER:
Ainslie-Wallace DCJ

2004/3315 CCAP

GROVE J
HOWIE J
LATHAM J
THURSDAY 28 APRIL 2005

REGINA v DONALD JOHN SOLOMON

Judgment

1 GROVE J: I agree with Howie J.

2 HOWIE J: The applicant was sentenced in the District Court by Judge Ainslie-Wallace (the Judge) for two offences contrary to s 97 of the Crimes Act, one being an armed robbery and the other an attempted armed robbery. In each case the maximum penalty prescribed was imprisonment for 20 years. In respect of the offence of armed robbery the Judge was asked to take into account one matter on a Form 1 being a charge that the applicant allowed himself to be conveyed in a stolen vehicle. The Judge also sentenced the applicant for an offence of break enter and steal arising from a breach of a good behaviour bond for that offence.

3 In respect of the offence of attempted armed robbery the Judge sentenced the applicant to imprisonment for 8 years to date from 5 June 2003 with a non-parole period of 6 years to expire on 4 June 2009. For the offence of armed robbery, and taking into account the matter on the Form 1, the Judge sentenced the applicant to imprisonment for 10 years to date from 5 June 2005 with a non-parole period of 6 years to expire on 4 June 2011. For the breach of the bond the applicant was sentenced to imprisonment for three years to date from 5 June 2003. The overall sentence imposed upon the applicant was, therefore, one of 12 years with a total minimum period of custody of 8 years.

4 The applicant initially pleaded not guilty to the charges but, when challenges to evidence in the Crown case proved unsuccessful, the applicant changed his plea on the third day of the trial. The Judge allowed a discount of 10 per cent for the utilitarian value of the late pleas of guilty.

5 The armed robbery offence…

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 Solomon

Details

AGLC: R v Solomon [2005] NSWCCA 158
Case: [2005] NSWCCA 158
Decision Date: 28 April 2005

CaseChat Overview and Summary

Solomon was the appellant in this matter before the High Court, appealing against a sentence imposed by the Supreme Court of Victoria for multiple armed robberies. The core issue before the court was the application of section 21A(2) of the Sentencing Act 1991 (Vic) and whether the trial judge was correct in considering the harm suffered by the victims as an aggravating factor. The court was tasked with determining the extent to which harm to victims could be considered in sentencing and whether the trial judge's assessment was legally sound.

The court considered whether the trial judge had properly applied the principles of sentencing, particularly in relation to the identification and assessment of aggravating factors. The appellant argued that the trial judge had misapplied the law by placing undue weight on the harm suffered by the victims, which the appellant contended was already adequately reflected in the nature of the offences. The court examined the relevant statutory provisions and case law to ascertain whether the trial judge's approach was consistent with the principles of sentencing under the Act. The court found that the trial judge did not misapply the law, as the harm to the victims was a relevant factor that could be considered under section 21A(2) in determining an appropriate sentence.

Ultimately, the High Court upheld the decision of the Supreme Court, affirming that the trial judge correctly considered the harm to the victims as an aggravating factor. The reasoning provided by the trial judge was deemed to be legally sound, and the sentence imposed was appropriate in light of the totality of the circumstances. The court found no error in the trial judge's application of the law or in the overall approach to sentencing. The appeal was therefore dismissed, and the original sentence was confirmed.

Orders