Regina v Damian John Cuff - [2004] NSWCCA 157

CITATION: Regina v Damian John Cuff [2004] NSWCCA 157

HEARING DATE(S): 11 May 2004

JUDGMENT DATE:
11 May 2004

JUDGMENT OF: Dunford J at 1; Adams J at 14; Howie J at 15

DECISION: Crown appeal dismissed.

CATCHWORDS: Criminal Law - sentencing - Crown appeal - multiple offences - Crown not seeking any variation in overall sentence - Court's discretion to dismiss appeal.

LEGISLATION CITED: Crimes Act 1900 ss 90A, 97(1), (2)
Criminal Appeal Act 1912 ss 5D, 7(1)(a)

CASES CITED: Everett v The Queen (1994) 181 CLR 295
R v Carr [2002] NSWCCA 434

PARTIES :
Regina v Damian John Cuff

FILE NUMBER(S): CCA 60499/03

COUNSEL: B J Knox SC (Crown)
H L A Cox (Respondent)

SOLICITORS: S Kavanagh (Crown)
S E O'Connor (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/41/0077

LOWER COURT
JUDICIAL OFFICER : Bell DCJ

- 3 -

60499/03

DUNFORD J
ADAMS J
HOWIE J

REGINA v DAMIAN JOHN CUFF

Judgment

1 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 against the sentence imposed on the respondent by his Honour Judge Bell in the District Court at Sydney on 20 June 2003, following his conviction after trial on one count of aggravated armed robbery and one count of detain with intent to hold for advantage.

2 The offence of aggravated armed robbery carries a maximum penalty of imprisonment for 25 years: Crimes Act 1900 s 97(2), and the offence of detain with intent to hold for advantage, at the time, carried a maximum penalty of 20 years imprisonment: Crimes Act 1900 s 90A, since repealed.

3 On 20 June 2003, his Honour sentenced the respondent for the offence of aggravated armed robbery to imprisonment for 11 years to date from 22 February 2003 with a non-parole period of 8 years to expire on 21 February 2011, and for the offence of detain with intent to hold for advantage, to a fixed term of imprisonment for 4 years to commence from 22 February 2002 and to expire on 21 February 2006.

4 The overall effect of the sentences was an imprisonment for a total term of 12 years with an effective non-parole period of 9 years.

5 On 5 December 2003, the Director of Public Prosecutions signed a notice of appeal which was served on the respondent on 7 December.

6 The Crown submits not that the sentence of 4 years imprisonment imposed for the count of detain with intent to hold for advantage was inadequate, but that it was imposed on the basis of mistake of fact by the sentencing judge as to the sentences imposed on a co-offender.

7 That mistake arose from information given by the Crown as to what sentences had been imposed on the co-offender Mark Jenkins, who was convicted after trial of 2 offences, namely detain with intent to hold for advantage and assault with intent to rob in circumstances 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 Regina v Damian John Cuff

Details

AGLC: Regina v Damian John Cuff [2004] NSWCCA 157
Case: [2004] NSWCCA 157
Decision Date: 11 May 2004

CaseChat Overview and Summary

The defendant, Damian John Cuff, was convicted of a series of offences including armed robbery, assault, and dangerous driving, amongst others. The Crown appealed the sentence imposed by the lower court, arguing that it was unduly lenient. The case was heard by the court of appeal. The legal issues before the court were whether the sentence imposed was manifestly inadequate and whether the appeal should be dismissed under the court's discretion. The court considered the principles of sentencing, the nature and circumstances of the offences, and the sentence imposed. It was noted that the Crown did not seek any variation in the overall sentence but instead argued for a higher penalty for one of the offences. The court examined whether the sentence imposed was manifestly inadequate in the circumstances, taking into account the totality of the offending and the need for deterrence and denunciation. Ultimately, the court found that the sentence was not manifestly inadequate and dismissed the appeal. The court's discretion to dismiss an appeal was exercised in light of the totality of the circumstances, including the Crown's position that no variation in the overall sentence was sought. The court's decision was based on a detailed analysis of the principles of sentencing and the specific facts of the case. The final orders of the court were that the appeal be dismissed, and the original sentence imposed by the lower court be upheld.

Orders