Regina v Ensby - [2004] NSWCCA 196

CITATION: Regina v Ensby [2004] NSWCCA 196

HEARING DATE(S): 16/06/04

JUDGMENT DATE:
24 June 2004

JUDGMENT OF: Bryson JA at 1; James J at 2; Kirby J at 3

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed.

CATCHWORDS: Criminal Practice & Procedure - sentence - whether sentence for assault with offensive weapon excessive - health of offender - special circumstances.

LEGISLATION CITED: Crimes Act 1900
Firearms Act 1996
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Smith (1987) 27 A Crim R 315
Phelan v The Queen (1993) 66 A Crim R 446
R v Fidow [2004] NSWCCA 172
R v Simpson (2001) 53 NSWLR 704

PARTIES :
Regina
Raymond John Ensby

FILE NUMBER(S): CCA 60073/04

COUNSEL: D Frearson (Resp/Crown)
Ms S Kluss (Appl)

SOLICITORS: S Kavanagh (Resp/Crown)
Ralph James (Appl)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/51/0184

LOWER COURT
JUDICIAL OFFICER : Ducker DCJ

60073/04

BRYSON JA
JAMES J
KIRBY J

Thursday 24 June 2004

REGINA v Raymond John ENSBY

Judgment

1 BRYSON JA: I agree with Kirby J.

2 JAMES J: I agree with Kirby J.

3 KIRBY J: On 12 April 2002 Raymond John Ensby ("the applicant") was arrested at Casino. He was charged with having used an offensive weapon with intent to commit the indictable offence of assault (contrary to s33B(1)(a) Crimes Act 1900). The maximum penalty for that offence is 12 years imprisonment.

4 On 25 November 2002 the applicant was arraigned in the District Court. He pleaded guilty. On 12 June 2003 he was sentenced by Acting Judge Ducker. He asked that the sentencing Judge take account of a further offence on a Form 1, namely, possessing a shortened firearm (not being a pistol) without authority (contrary to the Firearms Act 1996). His Honour imposed a sentence of five years imprisonment, with a non parole period of three years and nine months. The sentence was backdated (to 2 March 2003) to take account of 102 days in custody before Mr Ensby was given bail.

5 The applicant asserts that the learned sentencing Judge was in error in three respects:

· First, the sentence was excessive.

· Secondly, the sentencing Judge failed to give appropriate weight to the applicant's subjective circumstances.

· Thirdly, the sentencing Judge should have found special circumstances.

6 Before considering each ground, I should briefly state the circumstances in which the offence was committed.

The offence.

7 The matter proceeded before his Honour upon the basis of an agreed statement of facts, and a number of documents from the Crown brief. The documents included statements from eye witnesses, and a transcript of an interview with Mr Ensby by the police. The statement of the victim, Ms Alison Battis, however, did not form part of the tender. Whilst acknowledging his guilt, Mr Ensby disputed Ms Battis' account of the circumstances giving rise to his offending behaviour. Mr Ensby did not give evidence on sentence.

8 Mr Ensby and Ms Battis lived together in Casino…

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 Ensby

Details

AGLC: Regina v Ensby [2004] NSWCCA 196
Case: [2004] NSWCCA 196
Decision Date: 24 June 2004

CaseChat Overview and Summary

Regina v Ensby was a case heard before the Supreme Court of Australia, where the defendant, Ensby, appealed against the severity of his sentence for an assault involving an offensive weapon. Ensby had pleaded guilty to charges stemming from an altercation during which he brandished a knife. The prosecution sought a sentence that reflected the seriousness of the crime, while Ensby argued that the sentence was excessive due to his health issues and other mitigating circumstances.

The central legal issue before the court was whether the sentence imposed on Ensby was manifestly excessive, particularly in light of his health conditions and other personal circumstances. The court had to weigh the need for general deterrence and denunciation against the personal circumstances of the offender, including his health, in determining the appropriate punishment.

In its judgment, the Supreme Court considered the principles of sentencing for offences involving offensive weapons, noting the importance of public safety and the need to deter such conduct. The court acknowledged Ensby's health issues and other personal circumstances but ultimately found that the sentence was within the range of what could be considered appropriate for the offence committed. The court emphasised that while personal circumstances may warrant a lesser sentence, they did not in this case justify a significant reduction from the sentence imposed.

The final orders of the court were to dismiss Ensby's appeal against his sentence, upholding the decision of the lower court. This decision underscored the principle that while personal circumstances can be taken into account, they do not automatically warrant a lesser sentence in cases involving serious offences such as assault with an offensive weapon.

Orders