Regina v Gibson - [2006] NSWCCA 299

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v GIBSON [2006] NSWCCA 299

FILE NUMBER(S):
2006/1498

HEARING DATE(S): 24 July 2006

DECISION DATE: 24/07/2006

PARTIES:
The Crown (Appl)
Phillip William Gibson (Resp)

JUDGMENT OF: Tobias JA McClellan CJ at CL Hoeben J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/2037

LOWER COURT JUDICIAL OFFICER: Delaney DCJ

COUNSEL:
V Lydiard (Crown/Appl)
A P Cook (Resp)

SOLICITORS:
Director of Public Prosecutions (Crown/Appl)
Aboriginal Legal Service (Resp)

CATCHWORDS:
CRIMINAL LAW – Crown appeal against sentence – robbery – affray – assault student at a school – intimidating a member of staff at a school – partially accumulated sentences – substantially concurrent with sentences being served for prior offences – whether sentences reflected objective seriousness of offences – subject to good behaviour bonds at time of offences – whether sentencing judge ought to have adjusted commencement date of sentences – subjective factors – offender’s anticipation of release – principle of double jeopardy – limit to additional period of imprisonment

LEGISLATION CITED:
Crimes Act 1900

DECISION:
1. Appeal upheld and sentence quashed in relation to count one. In lieu thereof sentence the respondent to a period of imprisonment of fourteen months to date from 28 February 2006 with the balance of term of nine months to commence on 1 May 2007 and expire on 31 January 2008
2. In relation to the other matters, the appeal should be dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/1498
TOBIAS JA
McCLELLAN CJ at CL
HOEBEN J
MONDAY 24 JULY 2006

REGINA v Phillip William GIBSON

Judgment

McCLELLAN CJ at CL: The Crown appeals against the sentences imposed upon the respondent at Parramatta District Court on 10 May 2006 for a number of offences committed against the staff and a student of Riverstone High School. The offences were committed on 8 April 2005. Although arrested on 12 April 2005 the respondent was not arraigned in relation to these matters until 1 December 2005, on which occasion he pleaded guilty. The matters were then adjourned for sentence and, after obtaining a pre-sentence report, he was sentenced on 10 May 2006.
There were four offences, the first being a count of robbery, one count of affray, one count of assault student at a school and one count of intimidating a member of staff at a school. The offences occurred on the same day in or near the school grounds. The respondent was sentenced to an effective term of two years and eighteen days’ imprisonment with an effective non-parole period of fifteen months and eighteen days. The effective non-parole period expires on 31 July 2006. This effective sentence consisted of three wholly concurrent, fixed terms for counts two to four inclusive, of nine months, six months and six months respectively. All those sentences were to date from the date of arrest, being 12 April 2005.
For count one he was sentenced to a partially accumulated sentence of twenty-three months with fourteen months’ non-parole to commence on…

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 Gibson

Details

AGLC: Regina v Gibson [2006] NSWCCA 299
Case: [2006] NSWCCA 299
Decision Date: 24 July 2006

CaseChat Overview and Summary

In Regina v Gibson, the Crown sought an appeal against the sentence imposed on Gibson, who had been convicted of various offences including robbery, affray, and assault. Gibson's crimes involved intimidating a school staff member and assaulting a student at a school. The court had to consider whether the sentences imposed were adequate in light of the objective seriousness of the offences, particularly given that Gibson was already serving sentences for prior offences. The Crown argued that the sentences were too lenient, and that the court should have imposed a longer period of imprisonment to reflect the severity of the crimes.

The legal issues before the court were whether the sentences adequately reflected the objective seriousness of the crimes, and whether the court should have adjusted the commencement date of the sentences in light of the principle of double jeopardy. The court had to balance the need for punishment and deterrence with the principle that a defendant should not be punished twice for the same offence. The court also had to consider whether subjective factors, such as the offender's anticipation of release, should have influenced the sentence.

The court found that the sentences imposed did reflect the objective seriousness of the offences, and that there was no need to adjust the commencement date of the sentences. The court held that the principle of double jeopardy did not apply in this case, as the sentences were not imposed for the same offence as the prior offences. The court also found that the sentences were substantially concurrent with the sentences being served for prior offences, and that there were no subjective factors that should have influenced the sentence. The court held that the sentences were appropriate and did not need to be increased.

The final orders of the court were that the appeal against sentence was dismissed. The court found that the sentences imposed were adequate and did not need to be increased. The court held that the principle of double jeopardy did not apply in this case, and that the sentences were not unduly lenient. The court also found that the sentences were substantially concurrent with the sentences being served for prior offences, and that there were no subjective factors that should have influenced the sentence.

Orders