R v Walton; R v Scorah - [2009] NSWCCA 243

New South Wales
Court of Criminal Appeal

CITATION: R v Walton; R v Scorah [2009] NSWCCA 243

HEARING DATE(S): 17 June 2009

JUDGMENT DATE:
22 September 2009

JUDGMENT OF: Young JA at 1; Johnson J at 2; Latham J at 3

DECISION: 1. In the applications for leave to appeal by Carl Walton and Kevin Scorah, leave is granted in each case.
2. In each case the appeals are dismissed.

CATCHWORDS: CRIMINAL LAW - sentence - robbery in company and steal from the person - whether parity with juvenile co-offender - whether sentences manifestly excessive - partial accumulation warranted where offences committed against separate victims.

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999

CASES CITED: Ersman v R [2007] NSWCCA 161
R v Tran [2004] NSWCCA 6
R v Boney [2001] NSWCCA 432
R v Palmer [2005] NSWCCA 349
R v Cage [2006] NSWCCA 304
R v Henry & Ors. [1999] NSWCCA 111 ; (1999) 46 NSWLR 346 ; (1999) 106 A Crim R 149)
R v Cahyadi v R [2007] NSWCCA 1
Regina v Dunn [2004] NSWCCA 41
R v KM [2004] NSWCCA 65
R v Wilson [2005] NSWCCA 219
R v XX [2009] NSWCCA 115
R v Goundar [2001] NSWCCA 198 ; 127 A Crim R 331
R v Mitchell & Gallagher [2007] NSWCCA 296 ; 177 A Crim R 94
R v Wright [2009] NSWCCA 3.

PARTIES:
Carl Phillip Walton - (Applicant)
Kevin Scorah - (Applicant)
Regina - (Crown)

FILE NUMBER(S): CCA 2007/7782; 2007/8208

COUNSEL:
A Haesler SC - (Applicant) (Walton)
CT Loukas - (Applicant) (Scorah)
J Dwyer - (Crown)

SOLICITORS: Steve O'Connor - (Applicant) (Walton)
Steve O'Connor - (Applicant) (Scorah)
S Kavanagh - Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2007/41/0024 and 2007/41/0138

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 13 August 2008

2007/7782
2007/8208

YOUNG JA
JOHNSON J
LATHAM J
22 SEPTEMBER 2009

CARL PHILLIP WALTON v REGINA
KEVIN JAMES SCORAH v REGINA

Judgment

1 YOUNG JA : I agree with Latham J

2 JOHNSON J : I agree with Latham J.

3 LATHAM J : The applicants each seek leave to appeal against sentences imposed by Goldring DCJ (the Judge) on 13 August 2008 in respect of a number of offences committed on 2 December 2006. Each applicant was sentenced for steal from the person and robbery in company, carrying maximum penalties of 14 years and 20 years respectively. The applicant Walton was also sentenced for affray, carrying a maximum penalty of 10 years imprisonment.

4 The sentences were imposed following the applicants’ conviction on 2 June 2008 after a trial lasting several days. On the second day of their joint trial, the applicant Walton pleaded guilty to the affray offence.

5 The applicants received the same sentence for the offence of steal from the person, namely a non parole period of one year and 6 months, with a balance of term of one year. Walton received…

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.

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Details

Case: [2009] NSWCCA 243
Decision Date: 22 September 2009

CaseChat Overview and Summary

In the matter of R v Walton and R v Scorah, the defendants were convicted for their involvement in a series of robberies committed in company and thefts from the person. The dispute centred on the fairness of the sentences imposed by the trial judge, particularly whether they were excessive and whether they should be equal to those of their juvenile co-offender. The case was heard in the High Court of Australia. The primary legal issues were whether the sentences were manifestly excessive, and whether the partial accumulation of sentences was justified given the offences were committed against separate victims. The defendants argued that their sentences should be equal to those of their juvenile co-offender and that the sentences imposed were manifestly excessive.

The High Court examined the principles of sentencing, particularly the requirement for parity between co-offenders and the need for sentences to be proportionate to the crime committed. The Court considered that while the general principle is that co-offenders should receive equal sentences, this may be departed from if there are substantial and compelling circumstances justifying it. The Court also noted that while the imposition of separate sentences for each offence against different victims may result in a longer overall sentence, it does not necessarily render the sentence excessive if it is proportionate to the gravity of the crimes committed. The Court found that the trial judge had properly exercised his discretion in imposing sentences that reflected the seriousness of the offences and the defendants' roles in them.

The Court concluded that the sentences imposed were not manifestly excessive and that the partial accumulation of sentences was warranted given that the offences were committed against separate victims. The Court upheld the sentences, finding that they were proportionate to the crimes and that the trial judge had appropriately considered the defendants' roles and the impact of their crimes on the victims. The Court dismissed the appeals, confirming that the trial judge had correctly applied the relevant principles of sentencing.

Orders