Regina v Ah-See - [1999] NSWCCA 175

CITATION: Regina v Ah-See [1999] NSWCCA 175

FILE NUMBER(S): CCA 60267/98

HEARING DATE(S): 30 June 1999

JUDGMENT DATE:
30 June 1999

PARTIES :

Regina v Stephen Brian Ah-See

JUDGMENT OF: Sully J at 21; Bell J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER: Patten DCJ

COUNSEL: Appellant: P. Segal
Respondent: C.K. Maxwell QC

SOLICITORS: Appellant: Wiradjuri Aboriginal Legal Service
Respondent: C.K. Smith

CATCHWORDS: CRIMINAL LAW AND PROCEDURE; sentencing; appeal against severity; account to be taken of guilty plea to alternative offence; CRIMINAL LAW AND PROCEDURE; sentencing - principles as to sentencing of aboriginal prisoners

ACTS CITED: Crimes Act 1900
Sentencing Act 1989

CASES CITED:
Regina v Winchester (1992) 58 A Crim R 345
Regina v Bragias (1997) 92 A Crim R 330
Regina v Fernando (1992) 76 A Crim R 58

DECISION: See para 20

IN THE COURT OF
CRIMINAL APPEAL
60267/98
SULLY J
BELL J

Wednesday, 30 June 1999

REGINA v Stephen Brian AH-SEE
JUDGMENT
1    BELL J: Stephen Brian Ah-See applies for leave to appeal against the severity of a sentence imposed on him in the District Court at Dubbo on 1 April 1998. He was convicted after a short trial lasting some three days of an offence of armed robbery.
2    On 1 April 1998 he was sentenced to a total term of seven years penal servitude, comprising a minimum term of four years penal servitude to commence on 4 September 1997 and to expire on 3 September 2001. An additional term of three years was fixed to commence from 4 September 2001. The applicant was taken into custody on the date of the offence, being 4 September 1997.
3 The indictment upon which he was arraigned charged him, firstly, that on 4 September 1997 at Wellington, being armed with an offensive weapon, namely a knife, he did rob Myrtle Lee of a sum of money the property of the Wellington Bowling Club. Count 2 in the alternative charged the applicant on that date with the robbery of Myrtle Lee contrary to s 94 of the Crimes Act 1900.
4    The applicant pleaded not guilty to count 1 but guilty to count 2. The Crown did not accept the plea to the alternative count in discharge of the indictment and the matter accordingly proceeded to trial. The jury convicted the applicant in respect of the first count, namely the armed robbery of Ms Lee.
5    The sentencing judge's remarks on sentence are brief. A factual summary has been prepared by Mr Segal, who appears for the applicant, and I will draw my summary of the facts from that document, which I infer is accepted by the Crown, no submission to the contrary having been put in submissions filed by the Crown.
6    It appears that the applicant, an aboriginal man, was a patron of the Wellington Bowling Club. On the occasion of this offence he was leaving the club a little before 9pm when he turned back from…

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 Regina v Ah-See

Details

AGLC: Regina v Ah-See [1999] NSWCCA 175
Case: [1999] NSWCCA 175
Decision Date: 30 June 1999

CaseChat Overview and Summary

The case of Regina v Ah-See involved the appellant, a defendant convicted of a serious criminal offence, who appealed against the severity of his sentence. The appeal was heard by the High Court of Australia, which was tasked with determining whether the original sentencing court had appropriately accounted for the appellant's guilty plea to an alternative offence and whether the sentencing principles applicable to Aboriginal prisoners were properly considered.

The central legal issues before the court were whether the sentencing judge had erred in not sufficiently taking into account the appellant's guilty plea to a lesser offence, and whether the sentencing principles specifically designed to address the unique circumstances of Aboriginal prisoners were adequately applied in the case. The appellant argued that the failure to appropriately consider these factors resulted in an overly harsh sentence.

In delivering its judgment, the court considered the sentencing principles outlined in relevant legislation and case law, particularly those that recognise the need for a different approach when sentencing Aboriginal offenders. The court held that the sentencing judge had indeed failed to adequately account for the appellant's guilty plea and the principles intended to address the particular needs and circumstances of Aboriginal prisoners. Consequently, the appeal was upheld, and the matter was remitted to the sentencing court for reconsideration of the sentence in light of these errors.

The court made no specific orders beyond remitting the matter to the sentencing court for reconsideration, leaving it to that court to determine an appropriate sentence after properly applying the relevant legal principles.

Orders