Re v R - [2005] NSWCCA 429

CITATION:
RE v R [2005] NSWCCA 429

HEARING DATE(S): 8/12/05

JUDGMENT DATE:

16 December 2005

JUDGMENT OF:
McClellan CJ at CL at 1; Studdert J at 5; James J at 6

DECISION:
Leave to appeal granted. Appeal allowed - applicant re-sentenced (see par 48)

CATCHWORDS:
CRIMINAL LAW – sentence – offences of – breaking, entering and stealing from warehouse – detaining a security guard with the intention of obtaining an advantage – robbing of security guard – whether the sentencing judge gave an insufficient allowance for the applicant’s assistance and pleas of guilty – whether the sentences were manifestly excessive

LEGISLATION CITED:

Crimes Act
Crimes (Sentencing Procedure) Act
Criminal Appeal Act

CASES CITED:
Pearce v The Queen (1998) 194 CLR 610
R v Gallagher (1991) 23 NSWLR 220
R v M [2005] NSWCCA 224
R v Thomson; R v Houlton (2000) 49 NSWLR 383
R v Waqa (No 2) [2005] NSWCCA 33

PARTIES:
RE v R

FILE NUMBER(S):
CCA 2005/1449

COUNSEL:
J Dwyer - Crown
A Francis - Applicant

SOLICITORS:
S Kavanagh
Steve O'Connor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/11/0184

LOWER COURT JUDICIAL OFFICER:
Judge Solomon

2005/1449

McCLELLAN CJ at CL
STUDDERT J
JAMES J
FRIDAY 16 DECEMBER 2005

RE v R

Judgment

1 McCLELLAN CJ at CL: I have had the benefit of reading the reasons of James J in draft.

2 The sentencing of offenders who have pleaded guilty and have otherwise cooperated with the authorities can give rise to significant problems. It is necessary to ensure that leniency shown to an offender who has committed an offence does not mask the serious criminality of the offender’s conduct. Although in these circumstances a total discount greater than 50% from the sentence which should otherwise have been imposed may be appropriate, to my mind, this would be an unusual, if not rare, case. It is necessary to exercise care to ensure that the resulting sentence is not unreasonably disproportionate to the nature and circumstances of the offence as required by s 23(3) of the Crimes (Sentencing Procedure) Act 1999.

3 The offence committed by the applicant was serious and deserving of a significant period of imprisonment. However, I agree with James J that if Solomon DCJ reasoned from a starting point of eleven years this was excessive. Nevertheless, I have been concerned that a non-parole period of two years three months, even having regard to the applicant’s plea and cooperation with the authorities may be unduly lenient. However, although at the lowest end of the available range I have concluded that it is not unreasonably disproportionate to the nature and circumstances of the present offence.

4 I agree with the orders proposed by James J.

5 STUDDERT J: I agree with James J.

6 JAMES J: RE applied for leave to appeal against sentences imposed on him in the District Court on 3 February 2005 by his Honour Judge Solomon for three offences, all of which were committed on the night of 6-7 October 2003.…

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 Re v R

Details

AGLC: Re v R [2005] NSWCCA 429
Case: [2005] NSWCCA 429
Decision Date: 16 December 2005

CaseChat Overview and Summary

In the matter of Re v R, the applicant appealed against his conviction and sentence for offences of breaking, entering, and stealing from a warehouse, as well as detaining a security guard with the intention of obtaining an advantage, and robbing a security guard. The appeal was heard in the High Court of Australia. The central issue before the court was whether the sentencing judge had given insufficient allowance for the applicant's assistance and pleas of guilty and whether the sentences imposed were manifestly excessive. The applicant argued that the judge did not adequately consider his assistance and pleas of guilty, and that the sentences were unduly harsh.

The High Court considered the principles of sentencing and the role of the judge in determining the appropriate punishment for the offences. The court held that the sentencing judge had indeed considered the applicant's assistance and pleas of guilty, but the weight given to these factors was insufficient in the circumstances. The court found that the sentences imposed were manifestly excessive, taking into account the totality of the applicant's offending and the need to deter future similar offending. The High Court determined that the applicant's appeal should be allowed, and the case was remitted to a lower court for resentencing.

Orders