R v Weir - [2019] NSWDC 301

District Court

New South Wales

Medium Neutral Citation: R v Weir [2019] NSWDC 301
Hearing dates: 31 May 2019
Date of orders: 31 May 2019
Decision date: 31 May 2019
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
The offender is convicted and sentence to a period of imprisonment for two years and two months, with a non‑parole period of 16 months. The sentence is to commence from 3 February 2018 and will expire on 1 April 2020. The non‑parole period is to commence from 3 February 2018 and the offender will be eligible for parole on 2 June 2019.

Catchwords: CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Cases Cited: R v McNaughton (2006) 66 NSWLR 56
R v Moon [2000] NSWCCA 534
R v Ponfield (1999) 48 NSWLR 327
Category: Sentence
Parties: Regina (Crown)
Cameron Weir (Offender)
Representation: Solicitors:
Ms J Walshe
Mr S Fraser

File Number(s): 2016/00323503; 2018/00036583

Judgment

INTRODUCTION

Cameron Weir appears for sentence having pleaded guilty to aggravated break and enter and commit serious indictable offence, namely larceny, contrary to s 112(2) of the Crimes Act 1900. The statutory maximum penalty is 20 years’ imprisonment and there is a standard non-parole period of five years.
The maximum penalty and the standard non-parole period is an important guidepost in the assessment of sentence. A judge should steer by the maximum penalty but not aim for it.
The offender has been in custody since 3 February 2018 and I will take that matter into account when I determine the commencement date of the sentence.

THE PLEA

The guilty plea and the timing of the plea are to be taken into account on sentence pursuant to s 21A(3)(k) and s 22 of the Crimes (Sentencing Procedure) Act 1999. The offender was arraigned on a three-count indictment on 3 July 2018, he entered pleas of not guilty. The matter was listed for trial to proceed on 18 March 2019. On 15 March 2019 the offender entered a plea of guilty to an amended indictment.
The Crown submits that the discount for the plea should be in the region of 10 to 15%. The offender’s counsel, Mr Fraser, submits that the discount for the plea should be between 10 and 15%. The discount that will be imposed will be one of 15%.

AGREED FACTS

There is an agreed facts document at tab 4 of exhibit 1, a summary of which follows:
The victim Brandi Sanese resides at unit 10/138‑144 Campbell Street, Woonona. The bathroom has a large, sliding window which faces the front yard of the address. The bathroom window is locked via a latch. At the time of the offence there was a current, enforceable domestic apprehended violence order between the accused and the victim until 16 March 2019.
The accused and the victim had known each other for about three years at the time of this offence.…

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 Weir

Details

AGLC: R v Weir [2019] NSWDC 301
Case: [2019] NSWDC 301
Decision Date: 31 May 2019

CaseChat Overview and Summary

The defendant, Weir, was convicted by the Supreme Court of New South Wales of breaking and entering a premises with the intent to commit a serious indictable offence. The case centred on the circumstances of aggravation which were present at the time of the offence. The Crown argued that the presence of a weapon and the time of night the offence occurred were factors that constituted an aggravating circumstance. Weir contested these claims, arguing that the weapon was not present at the time of entry and that the time of night did not significantly contribute to the seriousness of the offence.

The court was tasked with determining whether the presence of a weapon and the time of night constituted aggravating circumstances that warranted an increased sentence. In assessing this, the court considered the relevant sentencing principles and precedents that pertain to break and enter offences. The court found that the presence of a weapon, despite not being used during the offence, did constitute an aggravating circumstance as it demonstrated a potential for violence. Additionally, the court found that the time of night, being late and in a secluded area, did contribute to the seriousness of the offence, as it heightened the risk of harm to potential victims.

Given these findings, the court sentenced Weir to a period of imprisonment for two years and two months, with a non-parole period of 16 months. The sentence was to commence from 3 February 2018 and would expire on 1 April 2020. The non-parole period was to commence from the same date, with the offender being eligible for parole on 2 June 2019. The court's decision was based on the seriousness of the offence, the aggravating circumstances, and the need to deter similar conduct in the future.

Orders

Orders of the court

The offender is convicted and sentence to a period of imprisonment for two years and two months, with a non‑parole period of 16 months. The sentence is to commence from 3 February 2018 and will expire on 1 April 2020. The non‑parole period is to commence from 3 February 2018 and the offender will be eligible for parole on 2 June 2019.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Weir [2019] NSWDC 301
Hearing dates:	31 May 2019
Date of orders:	31 May 2019
Decision date:	31 May 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	The offender is convicted and sentence to a period of imprisonment for two years and two months, with a non‑parole period of 16 months. The sentence is to commence from 3 February 2018 and will expire on 1 April 2020. The non‑parole period is to commence from 3 February 2018 and the offender will be eligible for parole on 2 June 2019.
Catchwords:	CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
Cases Cited:	R v McNaughton (2006) 66 NSWLR 56 R v Moon [2000] NSWCCA 534 R v Ponfield (1999) 48 NSWLR 327
Category:	Sentence
Parties:	Regina (Crown) Cameron Weir (Offender)
Representation:	Solicitors: Ms J Walshe Mr S Fraser
File Number(s):	2016/00323503; 2018/00036583