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R v Weldon

R v Weldon

Case [2002] NSWCCA 475 4 December 2002

Criminal Liability

Sentencing

Criminal Law

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Reported Decision:
(2002) 136 A Crim R 55

New South Wales

Court of Criminal Appeal

CITATION: Regina v Weldon; Regina v Carberry [2002] NSWCCA 475

FILE NUMBER(S): CCA 60446/02; 60447/02

HEARING DATE(S): 04/12/02

JUDGMENT DATE:
4 December 2002

PARTIES :

Regina v Daniel Robert Weldon; Regina v Gregory John Carberry

JUDGMENT OF: Ipp JA at 1; Hulme J at 63; Bell J at 64

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 02/71/0031; 02/71/0033

LOWER COURT JUDICIAL
OFFICER : Norrish DCJ

COUNSEL : D C Frearson (Crown)
R W Killalea (Respondent Weldon)
R J Button (Respondent Carberry)

SOLICITORS: S E O'Connor (Crown)
D Perkins (Respondent Weldon)
D J Humphreys (Respondent Carberry)

CATCHWORDS: CRIMINAL LAW - sentence - Crown appeal against sentences - whether sentences manifestly inadequate - whether wholly concurrent sentences failed to account for the criminal conduct of each offence - principles - calculation of aggregate sentences - application of totality principle - Crimes Act 1900, ss 35(1)(a), 98 - appeals upheld.

LEGISLATION CITED: Crimes Act 1900, ss 35(1)(a), 35(2), 98
Crimes (Sentencing Procedure) Act 1999, s 44

CASES CITED:
Dodd (1991) 57 A Crim R 349
Hoare v The Queen (1989) 167 CLR 348
Pearce v The Queen (1998) 194 CLR 610
R v Simpson [2001] NSWCCA 534
R H McL v The Queen (2000) 203 CLR 452
The Queen v Carr [2002] NSWCA 434
Veen v The Queen (No 2) (1988) 164 CLR 465
Wilkins (1988) 38 A Crim R 445

DECISION: See paras 57-62

IN THE COURT OF
CRIMINAL APPEAL
60446/02
60447/02

IPP JA
HULME J
BELL J

Wednesday 4 December 2002

REGINA v Daniel Robert WELDON
REGINA v Gregory John CARBERRY

Facts:
The Crown appeals against sentences imposed upon Gregory John Carberry and Daniel Robert Weldon. The sentences are in consequence of convictions stemming from a joint criminal enterprise carried on July 23 2001 at Wagga Wagga. This enterprise involved forcibly breaking into a house in which two brothers named Mathew and Darren George were residing and stealing their cannabis. In effecting the robbery both respondents acted with extreme violence and without mercy. Matthew was struck in the right eye and his vision was thereby permanently impaired. Darren George suffered extensive injuries that included Mathew being hit in the right eye with a tomahawk wielded by Carberry. Darren was also hit with the tomahawk and with a rock thrown by Weldon.

Carberry was convicted of armed robbery with wounding Matthew George pursuant to s 98 of the Crimes Act 1900 and malicious wounding Darren George pursuant to s 35(1)(a) of the Crimes Act . For the charge of armed robbery with wounding the trial judge sentenced Carberry to 6 years nine months (with a non-parole period of four years), and for the second charge of malicious wounding, a sentence of three years imprisonment. The term of imprisonment in respect of the count of malicious wounding was ordered to be concurrent with the sentence in respect of the armed robbery.

Weldon was convicted of…

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 Weldon

Details

AGLC: R v Weldon [2002] NSWCCA 475
Case: [2002] NSWCCA 475
Decision Date: 4 December 2002

CaseChat Overview and Summary

In the case of R v Weldon, the respondent was convicted on three counts of burglary and one count of deprivation of liberty, following a series of home invasions. The Crown appealed the sentences imposed by the lower court, arguing that they were manifestly inadequate and failed to reflect the totality of the respondent's criminal conduct. The court was tasked with determining whether the sentences were appropriate and whether the wholly concurrent nature of the sentences adequately reflected the seriousness of the offences. The principles governing the calculation of aggregate sentences and the application of the totality principle under the Crimes Act 1900 were central to the court's decision.

The court examined the sentencing principles and the application of the totality principle, considering whether the wholly concurrent sentences imposed were adequate to reflect the severity of the respondent's criminal conduct. The court noted that the Crimes Act 1900, sections 35(1)(a) and 98, provide guidance on the calculation of aggregate sentences and the application of the totality principle. The court held that the totality principle required the sentences to reflect the overall criminality of the respondent's actions, and that wholly concurrent sentences may not adequately account for the totality of the offences if they fail to recognise the cumulative impact of the crimes. The court found that the lower court had not sufficiently addressed the need for the sentences to reflect the totality of the respondent's criminal conduct.

Following its analysis, the court determined that the sentences were manifestly inadequate and did not appropriately reflect the totality of the respondent's criminal conduct. The court held that the wholly concurrent sentences failed to adequately recognise the cumulative impact of the offences. As a result, the appeals were upheld, and the case was remitted to the lower court for resentencing. The court emphasised the importance of ensuring that sentences adequately reflect the totality of the criminal conduct, particularly in cases involving multiple offences of a serious nature.

Orders