R v Watego - [2001] NSWCCA 236

CITATION: R v WATEGO [2001] NSWCCA 236

FILE NUMBER(S): CCA 60591/00

HEARING DATE(S): 25/06/2001

JUDGMENT DATE:
25 June 2001

PARTIES :

REGINA v
Benjamin Shane WATEGO

JUDGMENT OF: Barr J at 1; Howie J at 24

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/41/0166

LOWER COURT JUDICIAL
OFFICER : Goldring DCJ

COUNSEL : Crown: GE Smith
Applicant: JS Andrews

SOLICITORS: Crown: SE O'Connor
Applicant: DJ Humphreys

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999, s 32

CASES CITED:
R v Harrison [2001] NSWCCA 79
Pearce v The Queen [1998] HCA 57

DECISION: See para 21

60591/00

BARR J
HOWIE J

REGINA v Benjamin Shane WATEGO

JUDGMENT

1 BARR J: Benjamin Shane Watego seeks leave to appeal against a sentence imposed upon him in the District Court on 24 August 2000 by Goldring DCJ. His Honour sentenced the applicant for three offences of breaking, entering and stealing to concurrent sentences each of three years nine months and fixed on each a non-parole period of two years nine months. In imposing sentence his Honour took into account six other matters under the provisions of s 32 Crimes (Sentencing Procedure) Act 1999. His Honour made no distinction between the counts for sentencing purposes and did not state on which count those other matters were taken into account.

2 On 5 June 2000 the applicant was taken in a motor vehicle by one Leonie Harrison to house premises in Bulli. Whilst Harrison waited in the car the applicant broke in and stole a number of personal goods suitable for resale. Later on the same date Harrison drove the applicant to another house in the same district and he committed a similar offence there. On the following day Harrison drove him to a house at Coledale and waited for him whilst he broke in and stole items. As before, she drove him away, but police intercepted the car, acting on information they had received from a witness. In the car they found a large amount of electrical goods.

3 The applicant was arrested and taken to the police station where he admitted having committed the offence of 6 June and volunteered having committed the two offences on the previous day. The things stolen on 6 June were all recovered. The same cannot be said for the things stolen on the previous day.

4 The applicant pleaded guilty before the magistrate and was committed to the District Court for sentence. He confirmed his pleas of guilty before the sentencing judge and asked his Honour to take into account the six other offences. They were that on 5 January 2000 he had goods in his custody reasonably suspected of having been stolen, that on 10 January he committed a similar offence, that on 18 January he received goods worth less than $5,000, that on 20 March he committed two like offences and that on 17 April 2000 he stole goods worth less than $2,000.

5 His Honour noted the early plea of guilty and took…

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 Watego

Details

AGLC: R v Watego [2001] NSWCCA 236
Case: [2001] NSWCCA 236
Decision Date: 25 June 2001

CaseChat Overview and Summary

The case of Regina v Benjamin Shane Watego involves an appeal against a sentence imposed on the applicant for multiple counts of breaking, entering, and stealing. The District Court had sentenced the applicant to concurrent terms of three years and nine months for each count, with non-parole periods of two years and nine months. The applicant, who has a history of drug-related and property crimes, sought leave to appeal against the sentence, arguing that the sentencing judge had failed to properly consider certain mitigating factors. The Court of Criminal Appeal was tasked with determining whether the District Court judge had erred in his consideration of the applicant's plea of guilty, the comparison of sentences with a co-offender, the extent of the applicant's cooperation with the police, and whether the sentences were manifestly excessive.

The Court found that the sentencing judge had indeed overlooked his intention to impose a shorter non-parole period, influenced by the busy court schedule. However, the Court determined that the difference in the non-parole period was not significant enough to warrant interference. Regarding the comparison with the sentences imposed on a co-offender, the Court found that the differences in roles and the number of offences were substantial enough to justify the disparity in sentences. The Court also rejected the argument that the sentencing judge had insufficiently credited the applicant's cooperation with the police, noting that the admissions were largely admissions of guilt rather than significant cooperation. Lastly, the Court found that the initial sentence of five years, before applying the discount for the plea of guilty, was appropriate given the overall criminality.

The Court granted leave to appeal and allowed the appeal, quashing the original sentences and imposing new sentences. On the first count, the Court imposed a sentence of three years and nine months with a non-parole period of two years, while for the remaining counts, it imposed a term of eighteen months each. The Court structured the sentences in accordance with the requirements set out in Pearce v The Queen [1998] HCA 57, ensuring the sentences met legal standards.

Orders