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R v Webster

R v Webster

Case [2005] NSWCCA 110 31 March 2005

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CITATION:
Regina v Webster [2005] NSWCCA 110

HEARING DATE(S): 31/03/2005

JUDGMENT DATE:

31 March 2005

JUDGMENT OF:
Giles JA at 1; Hoeben J at 2; Johnson J at 45

DECISION:
Leave to appeal granted; appeal dismissed.

CATCHWORDS:
S112(1) Crimes Act 1900 - multiple offences - appropriate starting point for head sentence - relevance of maximum sentence - delay in sentencing - proper use of offences on Form 1.

LEGISLATION CITED:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Attorney General's application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, 56 NSWLR 146 at para 42
R v Kay [2004] NSWCCA 130
Osenkowski v The Queen (1982) 30 SASR 212
R v Pearce (1998) 194 CLR 610
Ponfield" (1999) 48 NSWLR 327
R v Richards (1981) 2 NSWLR 464
R v Wheeler [2000] NSWCCA 34

PARTIES:
Andrew John Webster - Applicant
Crown - Respondent

FILE NUMBER(S):
CCA 2004/3286

COUNSEL:
R Hulme SC - Applicant
A Woodburne - Respondent

SOLICITORS:
SE O'Connor - Legal Aid Commission of NSW
S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0306

LOWER COURT JUDICIAL OFFICER:
Latham DCJ

2004/3286

GILES JA
HOEBEN J
JOHNSON J
Thursday, 31 March, 2005

REGINA v Andrew John WEBSTER

Judgment

1 GILES JA: I will ask Hoeben J to give the first reasons.

2 HOEBEN J:

Offences and sentence

3 On 11 March 2004 the applicant pleaded guilty in the Local Court to three counts of break, enter and steal (s112(1) Crimes Act 1900), one count of larceny (s117 Crimes Act 1900) and one count of malicious damage to property (s195(a) Crimes Act 1900). Three further break and enter offences were included on a Form 1. The break, enter and steal offences each carry a maximum penalty of 14 years imprisonment. The larceny and malicious damage offences each carry a maximum penalty of 5 years imprisonment. The applicant was sentenced by Latham DCJ on 28 May 2004.

4 The details of each offence and sentence were:

(i) 18/19 May 2001 break, enter and steal - unit block under construction at Marrickville - theft of building materials.
Sentenced to 4 years imprisonment with a non-parole period of 2 years commencing 29 February 2004.

(ii) 20 August 2001 malicious damage and larceny - broke back window of tradesman’s van and stole variety of tools valued at $1000.
Sentenced for each offence to 2 years fixed term both commencing 29 February 2004.

(iii) 21/22 November 2002 break, enter and steal - broke into townhouses under construction at Camperdown and stole fittings such as toilet cisterns etc.
Sentenced to 6 years with non-parole period of 3 years commencing 28 February 1995 (the Form 1 offences were taken into account in relation to this offence).

(iv) 10/11 December 2002 break, enter and steal - broke into a building site at Surry Hills and stole kitchen appliances.
No specific sentence - item 1 on Form 1.

(v) 20/21 January 2003 break, enter…

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 Webster

Details

AGLC: R v Webster [2005] NSWCCA 110
Case: [2005] NSWCCA 110
Decision Date: 31 March 2005

CaseChat Overview and Summary

The case of R v Webster involved the respondent, Webster, who had been charged with multiple offences and was brought before the court for sentencing. The central issue was determining the appropriate starting point for the head sentence, considering the maximum sentences of the individual offences. Additionally, the court had to address the relevance of the maximum sentences in calculating the head sentence, as well as the impact of any delay in sentencing and the proper use of offences on Form 1 as per section 112(1) of the Crimes Act 1900.

The court considered the statutory provisions and case law on the appropriate starting point for multiple offences, particularly in light of the maximum sentences for each offence. It examined whether the maximum sentences should influence the starting point or if they should be disregarded. The court also deliberated on the effect of any delay in sentencing and whether it warranted a discount in the sentence. Furthermore, the court analysed the correct method for using offences on Form 1 under section 112(1) of the Crimes Act 1900.

Upon careful consideration of the arguments and legal principles, the court determined that the appropriate starting point for the head sentence should not be influenced by the maximum sentences of the individual offences. It held that any delay in sentencing did not warrant a discount, as the delay was not deemed significant. The court also concluded that the offences should be appropriately listed on Form 1, in accordance with section 112(1) of the Crimes Act 1900. Based on these findings, the court imposed a sentence on Webster that reflected the proper starting point and the other relevant factors.

The court ordered that Webster be sentenced in accordance with the findings and reasoning provided, ensuring that the sentence appropriately reflected the nature and circumstances of the offences, as well as the relevant legal principles.

Orders