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 AJ8 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…
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- AGLC
- R v Walker [2004] NSWCCA 230
- Case
- [2004] NSWCCA 230
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: DOWD J
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