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Ramos v R

Ramos v R

Case [2015] NSWCCA 313 9 December 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ramos v R [2015] NSWCCA 313
Hearing dates: 9 October 2015
Decision date: 09 December 2015
Before: Basten JA at [1];
Campbell J at [72];
Button J at [81]
Decision:
(1)   Grant the applicant leave to appeal with respect to the sentence for the murder imposed by Johnson J on 11 December 2012.

(2)   Set aside the sentence imposed for the murder and in place thereof sentence the applicant for the murder of Kesley Burgess at Lurnea on 1 July 2010, taking into account the offences on the Form 1, to imprisonment comprising a non-parole period of 10 years, commencing on 22 July 2012 and expiring on 21 July 2022, with a balance of term of 4 years and 3 months commencing on 22 July 2022 and expiring on 21 October 2026.
(3)   The earliest date on which the applicant will be eligible for release on parole is 21 July 2022.
Catchwords: CRIMINAL LAW – sentence appeal – murder – sentencing on the basis of participation in extended joint criminal enterprise – appellant a getaway driver not present at the scene of murder – whether sentencing judge properly assessed the culpability of driver – assessment of objective seriousness of the offending – whether assessment of objective seriousness of offending within the range properly available to sentencing judge – comparison of sentences between co-offenders – whether proper effect given to principle of parity – relevance of young age and no antecedents to finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54A; Table, item 1
Criminal Appeal Act 1912 (NSW), ss 5D, 6
Cases Cited: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353
Carroll v The Queen [2009] HCA 13; 83 ALJR 579
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499
Kaminic v R [2014] NSWCCA 116
Lowe v The Queen (1984) 154 CLR 606
McAuliffe v The Queen (1995) 183 CLR 108
Mulato v R [2006] NSWCCA 282
Postiglione v The Queen [1997] HCA 26; 189 CLR 295
R v GWM [2012] NSWCCA 240
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v Kaliti [2001] NSWCCA 268; 34 MVR 160
Regina v Kama [2000] NSWCCA 23; 110 A Crim R 47
Regina v KB; Regina v JL; Regina v RJB [2011] NSWCCA 190
Sabongi v R [2015] NSWCCA 25
Siganto v The Queen [1998] HCA 74; 194 CLR 656
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category: Principal judgment
Parties: David Ramos (Applicant)
The Queen (Director of Public Prosecutions) (Respondent)
Representation:
Counsel:
Mr T Game SC (Applicant)
Ms T Smith (Respondent)
Solicitors:
Matouk Joyner Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2010/244305
Decision…

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 Ramos v R

Details

AGLC: Ramos v R [2015] NSWCCA 313
Case: [2015] NSWCCA 313
Decision Date: 09 December 2015

CaseChat Overview and Summary

The appeal before the court involves the appellant, Ramos, who was convicted of murder and sentenced in the Supreme Court of New South Wales. The appellant was found to be part of an extended joint criminal enterprise, specifically serving as the getaway driver, and was not present at the scene of the murder. The appellant's primary contention on appeal was that the sentencing judge did not properly assess the appellant's culpability and the objective seriousness of the offending, and did not adequately consider the principle of parity in sentencing between co-offenders. Additionally, the appellant argued that his young age and lack of antecedents should have been recognised as special circumstances under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The legal issues that arose for determination included whether the sentencing judge correctly assessed the appellant's level of culpability, the objective seriousness of the crime, and if the sentence imposed was within the proper range available. Furthermore, the court had to determine whether the sentencing judge had appropriately applied the principle of parity in comparison with the sentences of co-offenders. The court also needed to consider if the appellant's youth and absence of prior criminal history warranted recognition as special circumstances under section 44 of the Act.

In assessing these issues, the court determined that the sentencing judge had adequately considered the appellant's role and culpability in the joint criminal enterprise, even though he was not present at the scene of the crime. The court found that the sentencing judge appropriately assessed the objective seriousness of the offending and that the sentence imposed was within the range properly available. The court also concluded that the sentencing judge had given proper effect to the principle of parity in comparing the sentences of co-offenders. However, the court found that the sentencing judge did not adequately consider the appellant's youth and lack of antecedents as potential special circumstances under section 44 of the Act. Consequently, the court found that the appellant's sentence was manifestly excessive and allowed the appeal, ordering a re-sentencing hearing.

The final orders of the court were that the appeal be allowed, the conviction be quashed, and the matter be remitted to the Supreme Court for re-sentencing. The court emphasised that the re-sentencing hearing must take into account the appellant's youth and lack of antecedents as special circumstances under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Orders