R v Spice, Richardson, Thompson & McGregor - [2008] NSWDC 250

CITATION: R v Spice, Richardson, Thompson & McGregor [2008] NSWDC 250

JUDGMENT DATE:
7 November 2008

JURISDICTION: Criminal

JUDGMENT OF: Hulme SC DCJ

DECISION: Spice - Total sentence of 3 years with a non-parole component of 1 year 9 months
Richardson - Total sentence of 1 years 10 months with a non-parole component of 1 year to be served by way of periodic detention
Thompson - Total sentence of 3 years with a non-parole component of 1 year 9 months
McGregor - Total sentence of 1 year 9 months with a non-parole component of 1 year to be served by way of periodic detention

CATCHWORDS: CRIMINAL LAW - Sentence - Break and enter with intent - Break, enter and steal - Accessory after break and enter with intent - Primacy of consideration of objective seriousness of offences - Commercial Premises - Planning - Significant loss and damage - Rehabilitation - Quasi custody - Special circumstances

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Eastway (unrep, 19/5/92, NSWCCA)
R v Everingham (unrep, 4/7/94, NSWCCA)
R v Psaroudis (unrep, 1/4/96, NSWCCA)
R v Campbell [1999] NSWCCA 76
R v Thompson [2000] NSWCCA 362
R v Perry [2000] NSWCCA 375
R v Fowler (2003) 151 A Crim R 166
R v Delaney (2003) 59 NSWLR 1
R v Sullivan (2004) 41 MVR 250
R v Cartwright (1989) 17 NSWLR 243
R v Kivits (unrep, 4/11/93, NSWCCA)
R v Dennis (unrep, 14/12/92, NSWCCA)
R v Williams (unrep, 5/8/93, NSWCCA)
R v Kennedy (unrep, 31/8/93, NSWCCA)
R v Sayak (unrep, 16/9/93, NSWCCA)
R v Herbert (unrep, 4/11/93, NSWCCA)
R v Kirwin (unrep, 30/10/97, NSWCCA)
R v Hanley (unrep, 9/10/98, NSWCCA)
R v Khamas (1999) 108 A Crim R 499
R v Fowler (2003) 151 A Crim R 166
R v Webb (2004) 149 A Crim R 167
R v Henry (1999) 46 NSWLR 346
R v Dodd (1991) 57 A Crim R 349
R v McNaughton (2006) 66 NSWLR 566
R v Youkhana [2004] NSWCCA 412
R v Ponfield (1999) 48 NSWLR 327
R v Gordon (1994) 71 A Crim R 459
Veen v The Queen (No 2) (1988) 164 CLR 465
Pearce v The Queen (1998) 194 CLR 610

PARTIES: R v Graham Thomas Spice
R v Kylie Louise Richardson
R v David John Thompson
R v Julie Maree McGregor

FILE NUMBER(S): 08/11/0908; 08/11/0907; 08/11/0909; 08/11/0906

COUNSEL: Mr Allen (Spice)
Ms Hall (Richardson)
Ms Robinson (McGregor)

SOLICITORS: Ms Lalic (Crown)
Mr Rolfe (Thompson)

JUDGMENT

1 HIS HONOUR: Each of the offenders, Graham Thomas SPICE, Kylie Louise RICHARDSON, David John THOMPSON and Julie Maree McGREGOR, pleaded guilty in the Local Court in respect of offences relating to the theft of money from the Wentworth Golf Club in Orange. They all pleaded guilty to an offence of Break, enter and steal committed on 12 August 2007. Spice, Thompson and McGregor pleaded guilty to the offence of Break and enter with intent to steal on 30 July 2007. Richardson pleaded guilty…

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.

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Details

Case: [2008] NSWDC 250
Decision Date: 7 November 2008

CaseChat Overview and Summary

The defendants were convicted of various criminal offences relating to a break and enter of a commercial premises, with the primary charges being break, enter and steal and accessory after break and enter with intent. The case was heard and determined by the court, which had to determine the appropriate sentences for the defendants. The court had to consider various factors, including the objective seriousness of the offences, the planning involved, the significant loss and damage caused, the potential for rehabilitation, and any special circumstances. The defendants' prospects for rehabilitation, as well as the nature of the quasi-custody options available, were also taken into account.

The court identified that the break and enter and theft of the commercial premises was a significant criminal activity that caused considerable loss and damage. The planning and coordination involved in the offence highlighted the defendants' intent and the potential for serious harm. The court also considered the defendants' prospects for rehabilitation, taking into account their backgrounds, age, and any previous criminal history. Special circumstances, such as the defendants' cooperation with authorities and remorse, were also evaluated as part of the sentencing process.

In determining the appropriate sentences, the court placed significant weight on the objective seriousness of the offences, the planning and coordination involved, as well as the loss and damage caused to the commercial premises. The court also considered the potential for rehabilitation and the availability of quasi-custody options, such as periodic detention. Ultimately, the court imposed sentences that reflected the gravity of the offences while also taking into account the individual circumstances of each defendant. The sentences imposed varied based on the specific roles and contributions of each defendant in the criminal activity.

The final orders of the court were as follows: Spice was sentenced to a total of 3 years with a non-parole component of 1 year 9 months; Richardson received a total sentence of 1 year 10 months with a non-parole component of 1 year; Thompson was sentenced to a total of 3 years with a non-parole component of 1 year 9 months; and McGregor was sentenced to a total of 1 year 9 months with a non-parole component of 1 year to be served by way of periodic detention. These sentences reflected the court's consideration of the various factors involved in the sentencing process, including the objective seriousness of the offences, the planning and coordination involved, the loss and damage caused, and the individual circumstances of each defendant.

Orders

Orders of the court

Spice - Total sentence of 3 years with a non-parole component of 1 year 9 months Richardson - Total sentence of 1 years 10 months with a non-parole component of 1 year to be served by way of periodic detention Thompson - Total sentence of 3 years with a non-parole component of 1 year 9 months McGregor - Total sentence of 1 year 9 months with a non-parole component of 1 year to be served by way of periodic detention

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Spice, Richardson, Thompson & McGregor [2008] NSWDC 250
JUDGMENT DATE:	7 November 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Hulme SC DCJ
DECISION:	Spice - Total sentence of 3 years with a non-parole component of 1 year 9 months Richardson - Total sentence of 1 years 10 months with a non-parole component of 1 year to be served by way of periodic detention Thompson - Total sentence of 3 years with a non-parole component of 1 year 9 months McGregor - Total sentence of 1 year 9 months with a non-parole component of 1 year to be served by way of periodic detention
CATCHWORDS:	CRIMINAL LAW - Sentence - Break and enter with intent - Break, enter and steal - Accessory after break and enter with intent - Primacy of consideration of objective seriousness of offences - Commercial Premises - Planning - Significant loss and damage - Rehabilitation - Quasi custody - Special circumstances
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Eastway (unrep, 19/5/92, NSWCCA) R v Everingham (unrep, 4/7/94, NSWCCA) R v Psaroudis (unrep, 1/4/96, NSWCCA) R v Campbell [1999] NSWCCA 76 R v Thompson [2000] NSWCCA 362 R v Perry [2000] NSWCCA 375 R v Fowler (2003) 151 A Crim R 166 R v Delaney (2003) 59 NSWLR 1 R v Sullivan (2004) 41 MVR 250 R v Cartwright (1989) 17 NSWLR 243 R v Kivits (unrep, 4/11/93, NSWCCA) R v Dennis (unrep, 14/12/92, NSWCCA) R v Williams (unrep, 5/8/93, NSWCCA) R v Kennedy (unrep, 31/8/93, NSWCCA) R v Sayak (unrep, 16/9/93, NSWCCA) R v Herbert (unrep, 4/11/93, NSWCCA) R v Kirwin (unrep, 30/10/97, NSWCCA) R v Hanley (unrep, 9/10/98, NSWCCA) R v Khamas (1999) 108 A Crim R 499 R v Fowler (2003) 151 A Crim R 166 R v Webb (2004) 149 A Crim R 167 R v Henry (1999) 46 NSWLR 346 R v Dodd (1991) 57 A Crim R 349 R v McNaughton (2006) 66 NSWLR 566 R v Youkhana [2004] NSWCCA 412 R v Ponfield (1999) 48 NSWLR 327 R v Gordon (1994) 71 A Crim R 459 Veen v The Queen (No 2) (1988) 164 CLR 465 Pearce v The Queen (1998) 194 CLR 610
PARTIES:	R v Graham Thomas Spice R v Kylie Louise Richardson R v David John Thompson R v Julie Maree McGregor
FILE NUMBER(S):	08/11/0908; 08/11/0907; 08/11/0909; 08/11/0906
COUNSEL:	Mr Allen (Spice) Ms Hall (Richardson) Ms Robinson (McGregor)
SOLICITORS:	Ms Lalic (Crown) Mr Rolfe (Thompson)