Regina v Brown - [2004] NSWCCA 215

CITATION: Regina v Brown [2004] NSWCCA 215

HEARING DATE(S): 28/06/04

JUDGMENT DATE:
28 June 2004

JUDGMENT OF: Ipp JA at 1; Hulme J at 24; Hislop J at 29

DECISION: Leave to appeal granted; Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Appeal against sentence - Guilty pleas for three robbery offences - Where offences had extremely serious consequences for victims - Where accused was young with no prior convictions - Partly principle - Whether trial judge erred in not taking the regret and remorse of the accused into account - Importance of the serious criminality of the offences.

PARTIES :
Regina
Peter Brown

FILE NUMBER(S): CCA 60099/04

COUNSEL: G I O Rowling (Crown)
D Dalton (Applicant)

SOLICITORS: S Kavanagh (Crown)
S O'Connor (Applicant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0605; 03/11/0126

LOWER COURT
JUDICIAL OFFICER : McGuire DCJ

60099/04

IPP JA
HULME J
HISLOP J
Monday 28 June 2004

REGINA v PETER BROWN

Judgment

1 IPP JA: This is an application for leave to appeal against sentence.

2 The applicant was convicted on his own plea of guilty of three offences. Firstly, armed robbery committed on 21 May 2002; secondly, robbing one Robert Lalor, in circumstances where, immediately before the robbery, he maliciously inflicted actual bodily harm on Lalor; and, thirdly, being armed with intent to commit an indictable offence, namely armed robbery.

3 The maximum penalty on the first offence was twenty years imprisonment, twenty years imprisonment on the second offence and, on the third offence, seven years imprisonment.

4 The sentencing judge, McGuire DCJ, sentenced the applicant under the third offence first. The sentence imposed was imprisonment for a fixed term of two years, the sentence to commence on 11 October 2002 and to expire on 10 October 2004.

5 His Honour then turned to the first and second offences. He sentenced the applicant on the first offence to imprisonment for a term of six years to commence on 11 October 2004 and to expire on 10 October 2010. He fixed a non-parole period of three years to commence on 11 October 2004 and to expire on 10 October 2007. In relation to the second offence, the judge sentenced the applicant to imprisonment for a term of six years to commence on 11 October 2004 and to expire on 10 October 2010 and he fixed a non-parole period of three years to commence on 11 October 2004 and to expire on 10 October 2007, when he ordered him to be eligible for release on parole. It can be seen that the sentences in respect of the first and second offences were ordered to be served concurrently.

6 The applicant was born on 12 May 1985, he was therefore seventeen years old at the time of the offences. He lived at home with his family and he was unemployed.

7 In dealing with the seriousness of the offences, the judge said that this was not a case of some callow youth performing a one-off crime. After the first…

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 Brown

Details

AGLC: Regina v Brown [2004] NSWCCA 215
Case: [2004] NSWCCA 215
Decision Date: 28 June 2004

CaseChat Overview and Summary

In Regina v Brown, the accused appealed against his sentence for three counts of robbery, which resulted in significant harm to the victims. The case came before the court on the basis that the trial judge failed to adequately consider the accused's regret and remorse, despite his young age and lack of prior convictions. The accused argued that his remorse should have been a mitigating factor in the sentencing process. The appeal focused on whether the trial judge erred in not taking the accused's remorse into account and whether the judge appropriately balanced this with the serious nature of the offences.

The court had to decide if the trial judge's failure to consider the accused's remorse amounted to an error of law and whether such an error warranted a reduction in the sentence. Additionally, the court had to weigh the accused's remorse against the extremely serious consequences of the robberies for the victims. The legal issue at the heart of the appeal was whether the trial judge's failure to consider the accused's remorse constituted a significant error in the sentencing process.

The court found that the trial judge did not err in sentencing the accused as he did. The court held that while the accused's remorse was a relevant factor, it was not the sole consideration in sentencing. The gravity of the crimes and the impact on the victims required a significant custodial sentence. The court emphasised that the seriousness of the robberies necessitated a sentence that reflected the gravity of the accused's criminal conduct. Consequently, the court upheld the original sentence imposed by the trial judge, noting that the judge had appropriately balanced the mitigating factors with the serious criminality of the offences.

No further orders were made by the court. The appeal was dismissed, and the original sentence remained in place.

Orders