R v Warren - [2003] NSWCCA 366

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Warren [2003] NSWCCA 366

FILE NUMBER(S):
60343/03

HEARING DATE(S): 5 December 2003

JUDGMENT DATE: 10/12/2003

PARTIES:
Regina v Bradley Malcolm Warren

JUDGMENT OF: Hidden J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0140

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

COUNSEL:
(C) P Power SC
(A) H Dhanji

SOLICITORS:
(C) C K Smith
(A) B Sandland

CATCHWORDS:
Sentences in District Court and Drug Court - application of principle of due proportion.

LEGISLATION CITED:
Drug Court Act 1998

DECISION:

Appeal allowed. Sentence quashed. (2) In lieu of the sentence imposed, the applicant is sentenced to imprisonment for 3 years 9 months commencing 2 March 2002 with a non-parole period of 2 years 3 months expiring on 1 June 2004.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60343/03

HIDDEN J
SMART AJ
Wednesday, 10 December 2003
Reginav Bradley Malcolm WARREN
JUDGMENT

HIDDEN J: I agree with Smart AJ

SMART AJ: Bradley Malcolm Warren seeks leave to appeal against the severity of a sentence of imprisonment of 4½ years with a non-parole period of 3 years for the offence of aggravated break enter and steal, taking into account four further offences, namely goods in custody (2 offences) larceny and unlawful entry into enclosed lands.

The applicant's challenge to his sentence is based on that passed on a co-offender in the Drug Court of 2 years 6 months imprisonment by way of an initial sentence pursuant to s.7(2) of the Drug Court Act 1998. That sentence was suspended pursuant to s.7(3) of that Act during his Drug Court program. The applicant claims that there is a lack of due proportion in the sentences for the same offence.

The applicant was found guilty on 16 August 2002 following a trial before Tupman DCJ. The specific matter of aggravation relied upon was that the applicant was in company at the time of the offence. The applicant and his co-offender Samir Elsamad, broke into a house in Ashfield on the afternoon of 25 December 2001. They gained entry by smashing one side of a pair of French doors and pushing over a wardrobe unit. A quantity of electronic sound equipment was removed from inside the premises, stacked on the outside verandah and hidden under a doona.

The two offenders left the scene and later returned in a taxi they had hired from Ashfield Station. The stolen items were placed in the taxi. Soon after the police arrived and arrested the applicant and his co-offender. The goods were recovered. The applicant claimed in an ERISP and also in his trial that he was only assisting his co-accused to remove goods from a verandah and that he was not involved in any joint criminal enterprise to break enter and steal. The jury rejected this explanation.

When assessing the objective criminality of the offence Tupman DCJ concluded:
"It is towards the bottom of the range of offences for aggravated break enter and steal."
At…

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 Warren

Details

AGLC: R v Warren [2003] NSWCCA 366
Case: [2003] NSWCCA 366
Decision Date: 10 December 2003

CaseChat Overview and Summary

The matter of R v Warren involved the defendant, Warren, appealing against his sentence imposed by the District Court of New South Wales. The dispute centred around the severity of the sentence and the application of the principle of due proportion in sentencing. The High Court of Australia was tasked with reviewing the District Court's decision and determining whether the sentence was proportionate to the offence committed.

The primary legal issue before the court was whether the District Court had correctly applied the principle of due proportion in sentencing. The principle of due proportion requires that the punishment should be commensurate with the gravity of the offence. The court needed to assess whether the sentence imposed was too harsh or too lenient, given the circumstances of the case. Additionally, the court considered whether the Drug Court had the authority to impose a sentence that deviated from the standard sentencing guidelines.

The court determined that the District Court had not appropriately applied the principle of due proportion in sentencing. The sentencing judge had failed to adequately consider the mitigating factors present in the case, resulting in an excessively harsh sentence. The court emphasised that the principle of due proportion required a careful balancing of the offender's culpability, the harm caused, and any mitigating factors. The High Court found that the Drug Court did not have the authority to impose a sentence outside the standard sentencing guidelines without a compelling justification. The court concluded that the sentence imposed was disproportionate and ordered the case to be remitted to the District Court for resentencing, with instructions to properly apply the principle of due proportion.

The final orders of the court mandated that the District Court resentence Warren, taking into account the principle of due proportion and any mitigating factors. The court emphasised the importance of proportionality in sentencing and provided guidelines for the District Court to follow in its resentencing determination. The High Court's decision underscored the necessity for courts to carefully consider the principles of sentencing and ensure that the punishment reflects the gravity of the offence committed.

Orders