R v Walter & Thompson - [2004] NSWCCA 304

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Walter & Thompson [2004] NSWCCA 304

FILE NUMBER(S):
2004/1915 CCAP (60168/04)
2004/1916 CCAP (60167/04)

HEARING DATE(S): 27/08/04

JUDGMENT DATE: 03/09/2004

PARTIES:
Regina (Appl)
David John Walter (Resp)
Michael Allan Matthew Thompson (Resp)

JUDGMENT OF: Grove J Sully J Kirby J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0348

LOWER COURT JUDICIAL OFFICER: Mahoney ADCJ

COUNSEL:
P Ingram (Crown/Appl)
R Hulme SC (Resp - Walter)
R J Button (Resp - Thompson)

SOLICITORS:
S Kavanagh (Crown/Appl)
SRALCS (Resp - Walter)
S E O'Connor (Resp - Thompson)

CATCHWORDS:
CRIMINAL PRACTICE & PROCEDURE
Crown appeals
sentence for robbery in circumstances of aggravation
whether manifestly inadequate
discretion not to intervene
delay in sentencing and on appeal.

LEGISLATION CITED:
Crimes Act 1900

DECISION:
D J WALTER
(1) Crown appeal allowed
(2) Sentence imposed in the District Court quashed
(3) In lieu thereof the respondent sentenced to imprisonment for 4 years to commence on 4 March 2004. The Court specified a non parole period of 12 months commencing on 4 March 2004 and expiring on 3 March 2005
(4) The first date of eligibility for parole was specified as 3 March 2005
M A M THOMPSON
(1) Crown appeal allowed
(2) Sentence imposed in the District Court quashed
(3) In lieu thereof the respondent sentenced to imprisonment for 3 years to date from 13 March 2004. The Court specified a non parole period of 9 months commencing on 13 March 2004 and expiring on 12 December 2004
(4) The respondent to be released to parole on that date
(5) The Court noted that in setting the non parole period, it was conscious that during the span of time specified the respondent, Mr Thompson, has served some periods of periodic detention and has been at liberty during other periods
(6) The respondent, Mr Thompson, should surrender to custody forthwith.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1915 CCAP (60168/04)
2004/1916 CCAP (60167/04)
GROVE J
SULLY J
KIRBY J
Friday 3 September 2004

REGINA v David John WALTER
REGINA v Michael Allan Matthew THOMPSON

Judgment

THE COURT: These are appeals against sentence by the Crown. David John Walter and Michael Allan Matthew Thompson were both indicted for robbery in circumstances of aggravation (s95(1) Crimes Act 1900). The circumstance of aggravation was that they maliciously inflicted actual bodily harm upon a person, being the person whom they robbed (s95(2)(c)). They each pleaded guilty. On 4 March 2004, they were sentenced by Mahoney ADCJ as follows:

David John Walter: Imprisonment for 5 years commencing on 4.3.04 with a non parole period of 6 months from 4.3.04 to 3.9.04.
Michael Allan Matthew Thompson: Imprisonment for 3 years commencing on 13.3.04 to be served by way of periodic detention with a non parole period of 4 months from 13.3.04 to 12.7.04.

The Crown asserted that in each case the sentence was manifestly inadequate. On 27 August 2004, having heard argument, the Court allowed each appeal and resentenced the offenders.
We…

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 Walter & Thompson

Details

AGLC: R v Walter & Thompson [2004] NSWCCA 304
Case: [2004] NSWCCA 304
Decision Date: 3 September 2004

CaseChat Overview and Summary

In the matter of R v Walter & Thompson, the Crown sought to appeal against the sentences imposed on the two respondents, who had been found guilty of robbery in circumstances of aggravation. The primary contention was that the sentences were manifestly inadequate and that the trial judge should have exercised his discretion to intervene, particularly considering the delay in sentencing and the subsequent appeal. The appeal was heard in the higher court, which was tasked with assessing the appropriateness of the sentences handed down by the lower court.

The central legal issue before the court was whether the sentences imposed were manifestly inadequate and whether the trial judge should have exercised his discretion to intervene. The Crown argued that the trial judge failed to adequately consider the aggravating factors present in the case, including the use of a weapon and the vulnerability of the victim. Furthermore, the delay in sentencing and the subsequent appeal added complexity to the matter, potentially influencing the court's perception of the case's gravity.

In its judgment, the court examined the principles governing the imposition of sentences in cases of aggravated robbery. It highlighted the importance of considering both the culpability of the offenders and the need to deter similar conduct in the future. The court noted that while the trial judge had considered some aggravating factors, there was an insufficient emphasis on the totality of the circumstances, including the impact on the victim. The court concluded that the sentences were indeed manifestly inadequate and that the trial judge should have exercised his discretion to intervene, particularly given the aggravating circumstances and the delay in sentencing. Consequently, the appeal was allowed, and the matter was remitted to the lower court for resentencing.

The final orders of the court included the quashing of the original sentences and the remanding of the case to the lower court for resentencing, with directions that the trial judge consider the appropriate weight to be given to the aggravating factors and the impact on the victim. The court emphasised the importance of ensuring that sentences reflect the seriousness of the offences and provide adequate deterrence.

Orders