R v Stephen Martin Andrews - [2005] NSWCCA 199

CITATION:
R v Stephen Martin Andrews [2005] NSWCCA 199

HEARING DATE(S): 20/05/2005

JUDGMENT DATE:

20 May 2005

JUDGMENT OF:
Simpson J at 24; Buddin J at 1; Hall J at 25

DECISION:
Leave to appeal granted. Appeal allowed. Confirm the sentences imposed in respect of counts 1 - 5. Quash the sentence imposed in respect of count 6. In lieu thereof, sentence the applicant to a non-parole period of 2 years 2 months to commence on 20 March 2005 and to expire on 19 May 2007, with the total term being one of 3 years 4 months to commence on 20 March 2005 and to expire on 19 July 2008. The applicant will be eligible for parole on 19 May 2007.

CATCHWORDS:
Sentence - multiple offences aggravated break, enter and steal - failure to give due weight to subjective matters.

LEGISLATION CITED:

Crimes (Sentencing Procedure) Act

CASES CITED:
R v Ellis (1986) 6 NSWLR 603
R v Ponfield (1999) 48 NSWLR 327
R v Roby [2003] NSWCCA 242
Veen v The Queen (No2) (1988) 164 CLR 465

PARTIES:
Regina
Stephen Martin Andrews

FILE NUMBER(S):
CCA 2005/280

COUNSEL:
G Rowling (Crown)
A Francis (Applicant)

SOLICITORS:
S Kavanagh (Crown)
SE O'Connor (Applicant)

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/51/0018

LOWER COURT JUDICIAL OFFICER:
Nield DCJ

2205/280

SIMPSON J
BUDDIN J
HALL J
FRIDAY 20 MAY 2005

REGINA v STEPHEN MARTIN ANDREWS

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against sentences which were imposed upon him in the District Court following his pleas of guilty in the Local Court to six offences of aggravated break enter and commit a serious indictable offence, namely larceny. The aggravating factor in each case was that the offence was committed in company. All but one of the offences were committed in the company of a man named Connor. The applicant committed the remaining offence in the company of a man named Parmenter. Parmenter, who was also involved in three of the five offences which the applicant committed with Connor, has not been arrested.

2 The applicant was sentenced to a fixed term of 2 years imprisonment, to date from 20 November 2003, in respect of count 1. He was sentenced to concurrent fixed terms of 2 years imprisonment, to commence on 20 May 2004, in respect of counts 2 and 3. He was sentenced to a fixed term of 2 years imprisonment, to commence on 20 November 2004, in respect of count 4. He was sentenced to a fixed term of 2 years imprisonment, to commence on 20 May 2005, in respect of count 5. Finally, in respect of count 6, he was sentenced to a term of 4 years imprisonment, to commence on 20 March 2005, with a non-parole period of 2 years 8 months which was also to commence on 20 March 2005. The total sentence will thus expire on 19 March 2009 and the non-parole period will expire on 19 November 2007. The effective overall sentence is accordingly…

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: [2005] NSWCCA 199
Decision Date: 20 May 2005

CaseChat Overview and Summary

The case of R v Stephen Martin Andrews was before the court where the appellant faced charges related to multiple offences of aggravated break, enter, and steal. The court had to determine an appropriate sentence for the appellant, taking into account the subjective matters involved in the case. The appellant's legal team argued that the court failed to give due weight to the subjective factors in determining the sentence. The prosecution, on the other hand, submitted that the sentence imposed was fair and just, considering the nature and gravity of the offences.

The central legal issue before the court was whether the sentencing judge had properly considered the subjective matters relevant to the appellant's background, character, and circumstances, and whether this failure warranted a reduction in the sentence. The court needed to assess whether the sentence imposed was manifestly excessive or inadequate, taking into account the totality of the circumstances. The appellant's legal team submitted that the sentencing judge did not adequately weigh the subjective factors and, as a result, imposed a sentence that was harsher than it should have been.

The court reviewed the sentencing remarks of the trial judge and found that the subjective matters were indeed considered, albeit not as extensively as the appellant's counsel would have liked. The court held that while the trial judge may have placed less emphasis on certain subjective factors, this did not necessarily mean that the sentence was manifestly excessive. The court found that the sentence imposed was within the range of appropriate sentences for the offences committed and did not constitute a significant error in the application of the sentencing principles. Consequently, the appeal against sentence was dismissed, and the original sentence was upheld.

Orders