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R v Tobar

R v Tobar

Case [2004] NSWCCA 391 19 November 2004

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Reported Decision:
150 A Crim R 104

New South Wales

Court of Criminal Appeal

CITATION: R v Tobar; R v JAN [2004] NSWCCA 391

HEARING DATE(S): 8 November 2004

JUDGMENT DATE:
19 November 2004

JUDGMENT OF: Dunford J at 1; Simpson J at 2; Hidden J at 66

DECISION: Tobar: 1. Application for leave to appeal granted; 2. Appeal allowed; 3. Each sentence imposed in the District Court be quashed and in lieu thereof, Tobar be sentenced as follows: (i) armed robbery with wounding: imprisonment with a non-parole period of three years, to commence on 3 November 2003, and expire on 2 November 2006, with a balance of term of three years and three months, to expire on 2 February 2010; (ii) on each other charge: imprisonment with a non-parole period of two and a half years to commence on 3 November 2003, and expire on 2 May 2006, with a balance of term of two and a half years, to expire on 2 November 2008 ; JAN: 1. Application for leave to appeal granted; 2. Appeal allowed; 3. Each sentence imposed in the District Court be quashed and in lieu thereof, JAN be sentenced as follows: (i) armed robbery with wounding: imprisonment with a non-parole period of three years, to commence on 27 March 2003, and expire on 26 March 2006, with a balance of term of three years and three months, to expire on 26 June 2009; (ii) on each other charge: imprisonment with a non-parole period of two and a half years to commence on 27 March 2003, and expire on 26 September 2005, with a balance of term of two and a half years, to expire on 26 March 2008; 4. Each sentence to be served in a detention centre until the applicant attains the age of 21 years or until such date as he is released on parole, whichever is the earlier.

CATCHWORDS: appeal against sentences - armed robbery - armed robbery with wounding - assault with intent to rob whilst armed - Form 1 offences - juvenile offender - pleas of guilty - co-offender's sentence reduced by this Court - subjective circumstances - determination of sentences - re-sentencing

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987, s19
Crimes Act 1900 s97(1), s98
Crimes (Sentencing Procedure) Act 1999 Part 3, Division 3, Part 4, Division 1A, s21A, s44, s54A, s54B,
Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002
Sentencing Act 1989, s5

CASES CITED: R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Moffitt (1990) 20 NSWLR 114
R v P [2004] NSWCCA 218
R v Way [2004] NSWCCA 131

PARTIES :
Crown - Respondent
Gerardo Tobar - Applicant
JAN - Applicant

FILE NUMBER(S): CCA 2004/2055; 2004/2249

COUNSEL: Crown - DC Frearson SC
Applicant Tobar - P Hamill SC
Applicant JAN - H Dhanji

SOLICITORS: Crown - S Kavanagh (Solicitor for Public Prosecutions)
Applicant Tobar - S O'Connor (Legal Aid Commission)
Applicant JAN - C Hunter

LOWER COURTJURISDICTION: District Court

LOWER…

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 Tobar

Details

AGLC: R v Tobar [2004] NSWCCA 391
Case: [2004] NSWCCA 391
Decision Date: 19 November 2004

CaseChat Overview and Summary

The case of R v Tobar involved the defendant, Tobar, who was convicted of multiple offences including armed robbery with wounding, assault with intent to rob while armed, and related charges. Tobar, a juvenile at the time of the offences, pleaded guilty to these charges. The matter was heard in the Court of Appeal, which was tasked with reviewing the sentences imposed by the trial court. The appeal focused on the sentences given to Tobar for the various offences, particularly in light of a co-offender's sentence being reduced by the Court of Appeal in a previous ruling.

The primary legal issues before the Court of Appeal were whether the sentences imposed by the trial court were appropriate in the circumstances, considering the subjective nature of the offences and the age of the offender. The Court was required to assess whether the trial court had adequately considered Tobar's age and the potential for rehabilitation, alongside the severity of the crimes committed. Additionally, the Court needed to determine if the sentences were proportionate to the crimes and consistent with sentences imposed on co-offenders.

In delivering its judgment, the Court of Appeal carefully examined the sentences imposed by the trial court. It took into account the subjective circumstances surrounding each offence, including the level of violence, the use of weapons, and the impact on the victims. The Court noted the importance of deterrence and the need to protect the community, but also emphasised the need for proportionality and the potential for rehabilitation, particularly given Tobar's age at the time of the offences. The Court found that while the offences were serious, the sentences imposed were excessive and not commensurate with the co-offender's reduced sentence, which had been deemed appropriate by the Court of Appeal in a prior decision.

As a result, the Court of Appeal allowed the appeal, quashed the original sentences, and ordered that Tobar be re-sentenced. The Court directed that the re-sentencing process should appropriately consider Tobar's age, the subjective circumstances of each offence, and the principle of proportionality. The Court also emphasised the need for the trial court to clearly articulate the reasons for the sentences imposed, ensuring they were consistent with sentences for similar offences and co-offenders.

Orders