R v Sydney - [2004] NSWCCA 63

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v SYDNEY [2004] NSWCCA 63

FILE NUMBER(S):
60347/03

HEARING DATE(S): 10/02/2004

JUDGMENT DATE: 22/03/2004

PARTIES:
R v JAMES GLENDEN SYDNEY

JUDGMENT OF: Beazley JA O'Keefe J Bell J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/1067

LOWER COURT JUDICIAL OFFICER: Stewart ADCJ

COUNSEL:
G. Rowling (Appellant/Crown)
W.P. Lowe (Respondent

SOLICITORS:
C.K. Smith (Appellant)

CATCHWORDS:
CRIMINAL LAW - SENTENCE - Whether sentence imposed by trial judge manifestly inadequate - Objective seriousness of offence - Whether matters on Form 1 properly taken into account - Discount for utilitarian value of plea of guilty - Whether "double discount" allowed.
FORM 1 MATTERS - Offences on a Form 1 constitute an admission of guilt but not a conviction - Offender not to be sentenced for more than principal offence.

LEGISLATION CITED:
Crimes Act (NSW) 1900
Crimes (Sentencing Procedure) Act (NSW) 1999
Criminal Appeal Act (NSW) 1912

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60347/03
BEAZLEY JA
O’KEEFE J
BELL J
22 March 2004

R. v. SYDNEY

FACTS

The Crown appealed against a sentence imposed by Stewart ADCJ upon the respondent who had pleaded guilty to one count of aggravated armed robbery under s.97(2) of the Crimes Act (NSW) 1900, the maximum penalty for which is 25 years imprisonment. There were also five matters to be taken into account on a “Form 1”: s.33 of the Crimes (Sentencing Procedure) Act (NSW) 1999. Stewart ADCJ imposed a term of imprisonment of six years. He found special circumstances under s.44(2) of the Act and ordered a non-parole period of three years.
The Crown appealed on the ground that the sentence was manifestly inadequate. It argued that the sentence did not reflect the objective seriousness of the offence and that Stewart ADCJ erred in allowing a discount of 15% for the utilitarian value of the respondent’s plea and failed appropriately to take into account the matters on the Form 1.
HELD per Beazley JA (O’Keefe and Bell JJ agreeing):
(i)The sentencing judge did not misunderstand the Court’s guideline judgments on the giving of discounts for guilty pleas: R v Thomson (2000) 49 NSWLR 383; R v Henry (1999) 46 NSWLR 346.
(ii)Stewart ADCJ considered that the respondent deserved credit for initiating the plea process and that the plea itself indicated the respondent’s contrition.
(iii)A discount of 15% for the utilitarian value of the plea was open to his Honour.

(iv)His Honour did not allow an effective discount of 25% by allowing a discount over and above the discount inherent in the guideline sentence in Henry.
(v)It is not necessary for the sentencing judge to specify the extent to which the Form 1 matters are taken into account.
(vi) In this case, the question whether appropriate regard had been had to the Form 1 matters involved a consideration of the overall adequacy of the sentence.
(vii)In determining the adequacy of the sentence imposed, regard must be had to the principle…

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 Sydney

Details

AGLC: R v Sydney [2004] NSWCCA 63
Case: [2004] NSWCCA 63
Decision Date: 22 March 2004

CaseChat Overview and Summary

The Crown appeals against the sentence imposed on the respondent by the District Court, arguing that it is manifestly inadequate. The respondent pleaded guilty to a charge of armed robbery, involving the theft of a large quantity of mobile phones from a warehouse at Fairfield. The trial judge imposed a sentence of imprisonment for 6 years and 3 months, with a non-parole period of 3 years and 10 months. The Crown submits that the sentence did not adequately reflect the objective seriousness of the offence or the need for general deterrence and protection of society. The Crown also argues that the trial judge failed to appropriately take into account the matters on the Form 1.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly inadequate, whether the matters on the Form 1 were properly taken into account, and whether a discount for the utilitarian value of the plea of guilty could be applied. The court considered the objective seriousness of the offence, the need for general deterrence, and the fundamental purpose of punishment which is the protection of society. The court also examined whether a double discount was permissible for the plea of guilty and the matters on the Form 1. The court considered the totality of the circumstances of the case and the principles of sentencing.

The court held that the sentence imposed by the trial judge was manifestly inadequate. The court found that the sentence did not reflect the objective seriousness of the offence, the need for general deterrence, or the protection of society. The court also found that the trial judge failed to appropriately take into account the matters on the Form 1. The court considered that the matters on the Form 1 constituted an admission of guilt but not a conviction, and the offender was not to be sentenced for more than the principal offence. The court held that a double discount was not permissible and that the discount for the utilitarian value of the plea of guilty should be applied. The court imposed a sentence of imprisonment for 9 years, with a non-parole period of 5 years.

The court ordered that the sentence of imprisonment for 9 years, with a non-parole period of 5 years, be substituted for the sentence imposed by the trial judge.

Orders

Orders of the court

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Background

Background to the litigation

The Crown appeals on the basis that the sentence is manifestly inadequate. It was submitted that the sentence imposed did not reflect the objective seriousness of the offence, or the need for general deterrence: R v. Simpson (2001) 53 NSWLR 704 at para. 65 per Spigelman CJ, nor did it meet the fundamental purpose of punishment namely, the protection of society. The Crown further submitted that the trial judge failed to impose a sentence which appropriately took into account the matters on the Form 1.Facts As Stewart ADCJ comprehensively dealt with the background of the offence as well as with the matters on the Form 1, it is sufficient to refer to the facts briefly. The offence under s.97(2) to which the respondent pleaded guilty involved a charge that on 13 May 2001 at Fairfield, being armed with a dangerous weapon, namely a shotgun, he robbed one Vikram Gujral of a large quantity of mobile phones and mobile phone accessories being the property of Mayne Nickless Limited. The robbery occurred in the early hours of the morning. The victim, Vikram Gujral, was the security guard at the Mayne Logistics warehouse at Fairfield. He was approached by the respondent and another co-offender, Richard Murchie who was holding a shotgun, and was told not to press the alarm button. Mr. Gujral pressed the alarm button and the respondent and Murchie forced him to lie on the ground. He was kicked in the stomach and his hands and legs were tied together with duct tape. Mr. Gujral then heard the snapping of a chain and two vehicles being driven through the gate of the warehouse. The padlocks on these gates were later found to have been cut with bolt cutters. Mr. Gujral caught a glimpse of the number plate of one of those vehicles, which he thought was AJ-12A. Mr. Gujral heard the roller door to the main warehouse open up and heard a number of voices. He also heard the sound of boxes being moved around. A while later, one of the males came back to him and took his wallet from his back pocket stating “Don’t tell the description to the police” and told him that he knew Mr. Gujral’s identity. The thieves then left the warehouse premises. Prior to the robbery, there had been police telephone surveillance of the mobile phone of one of the co-offenders. That co-offender, Joseph Kazzi, has also been charged in relation to the theft but has pleaded not guilty. The telephone intercepts revealed that there had been a significant degree of planning for the robbery. This included arranging to get bolt cutters, a ladder and a radio scanner that facilitated access to the police radio network. The mobile phone surveillance revealed that from 1.24 a.m. until 2.59 a.m. on 13 May 2001 all calls made and received by Kazzi’s mobile phone were relayed from a cell site covering the area where the Mayne Logistics warehouse is located. About an hour before the robbery, Kazzi rang the respondent telling him to “take the duct tape with you and the shottie with bullets in it”. In this conversation the respondent told Kazzi where he was going to park “the rexy”. The evidence revealed that that was a reference to a stolen Subaru WRX, registration number AJP 13A which is the subject of one of the matters on the Form 1 and undoubtedly the motor vehicle the number plate of which Mr. Gujral thought was AJ-12A. It is apparent from the intercepted telephone conversations that Kazzi and another co-offender, Mark Williams, climbed onto the roof of an adjoining building with an extension ladder and this gave them access across the rooftop to the Mayne Logistics warehouse. It is also apparent from the intercepts that it was at this stage of the robbery that the respondent and Murchie were watching Vikram Gujral, that the respondent then moved the two vehicles to a position outside the gates of the warehouse and having tied up Mr. Gujral used bolt cutters to cut the locks of the gates. The respondent drove both vehicles into the warehouse compound. Meanwhile, Kazzi and Williams had cut open the roof of the warehouse and used a knotted rope to enter it. They opened the roller doors and boxes of mobile phones and accessories were loaded into the vehicles.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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