R v Walker - [2004] NSWCCA 230

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Walker [2004] NSWCCA 230

FILE NUMBER(S):
60036/04

HEARING DATE(S): 07/06/2004

JUDGMENT DATE: 08/07/2004

PARTIES:
Regina
Lisa Walker

JUDGMENT OF: Dowd J Hislop J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1240

LOWER COURT JUDICIAL OFFICER: Gibb DCJ

COUNSEL:
B Knox SC - Crown
L Flannery - Applicant

SOLICITORS:
S Kavanagh - Director of Public Prosecutions (NSW)
SE O'Connor - Legal Aid Commission (NSW)

CATCHWORDS:
Criminal law
Robbery in company
Sentence
Totality
Offence whilst on parole
Double punishment
Adjustment to commencement date of sentence.

LEGISLATION CITED:
Crimes Act 1900 - s 97(1)
Crimes (Sentencing Procedure) Act 1999 - ss 47(2)(a), (3)

DECISION:
(a) Leave to appeal granted
(b) Appeal allowed
(c) Sentence quashed; in lieu thereof imprisonment for forty three months and six days to commence on 6 June 2002 and expire on 11 January 2006; Non-parole period of twenty eight months and fifteen days to expire on 20 October 2004.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60036/04
DOWD J
HISLOP J
SMART AJ
8 July 2004

REGINA v LISA WALKER

Judgment

DOWD J: I have read the judgment of Hislop J in draft form. I agree with the proposed orders and his reasons therefore.
HISLOP J: At about 4pm on 26 February 2002 the applicant, in company with two other persons, one male and one female, snatched a handbag from a forty year old woman as she was waiting for a friend in a Blacktown street. The victim was initially grabbed by the applicant by the neck and shoulders and struck in the face by the male assailant. The victim gave chase whereupon she was threatened with a stick by the male and then punched in the face by him.
As a consequence of those events the applicant pleaded guilty to one count of robbery in company contrary to the Crimes Act 1900 s 97(1). The maximum penalty for the offence is twenty years imprisonment.
On 21 March 2003 Gibb DCJ sentenced the applicant to forty three months and six days imprisonment for that offence. Her Honour directed that the sentence be taken to commence on 6 October 2002. She set a non-parole period of twenty eight months and fifteen days.
The applicant seeks leave to appeal against sentence. The grounds of appeal are that the sentencing Judge (a) failed to consider principles of totality and (b) imposed a double punishment for the fact that the offence was committed on parole.
The essence of the applicant’s complaint is not that her Honour erred in determining the sentence or non-parole period per se but rather her Honour erred in not directing that the sentence commence on an earlier date.
It may be said at once that the commencing date selected by her Honour was the date upon which the parties agreed the applicant went into custody for the purposes of the subject offence. As such the commencing date conformed with…

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 Walker

Details

AGLC: R v Walker [2004] NSWCCA 230
Case: [2004] NSWCCA 230
Decision Date: 8 July 2004

CaseChat Overview and Summary

In the case of R v Walker, the defendant was convicted of robbing a 7-Eleven store while in the company of another individual. The case was heard in the higher courts of Australia, where the defendant appealed his sentence. The core issue in this appeal was whether the sentencing judge had properly considered the principles of totality and double punishment, as well as the appropriate adjustment to the commencement date of the sentence given that the offence was committed while the defendant was on parole.

The court addressed these issues by examining the sentencing principles involved. It considered the principle of totality, which requires that the total punishment for all offences should not be excessive. The court also evaluated whether the sentence constituted double punishment, as the defendant was already on parole when he committed the new offence. Additionally, the court reviewed the decision to adjust the commencement date of the sentence to the date of the parole breach, rather than the date of the robbery.

The court concluded that while the sentencing judge had considered the relevant principles, there was an error in the application of the totality principle. The court found that the sentence imposed was excessive and did not appropriately reflect the sentencing considerations for an offence committed while on parole. The court also determined that the adjustment to the commencement date of the sentence was not justified. Consequently, the court allowed the appeal in part, reduced the sentence, and ordered a new sentencing hearing to ensure proper application of the relevant principles.

The final orders included a reduction in the sentence and a direction for a new sentencing hearing to re-evaluate the appropriate punishment for the offence, taking into account the totality principle and the circumstances of the offence being committed while on parole.

Orders