Regina v Humphries - [2005] NSWCCA 305

CITATION:
REGINA v. HUMPHRIES [2005] NSWCCA 305

HEARING DATE(S): Tuesday 23 August 2005

JUDGMENT DATE:

6 September 2005

JUDGMENT OF:
Sully J at 1; Hidden J at 2; Hall J at 3

DECISION:
Leave to appeal granted; appeal dismissed

CATCHWORDS:
Criminal law - disparity of sentences - whether less severe sentence warranted - justifiable sense of grievance - applicant received the same sentence as his brother - no basis for the claimed disparity - the facts did not permit a basis for distinguishing between the sentences - age alone was not a sufficient basis in these circumstances for distinguishing between the sentences

LEGISLATION CITED:

Crimes Act 1900
Pawnbrokers & Second-hand Dealers Act 1996
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED:
Bavadra (2000) 115 A. Crim .R. 152
Vougdis (1989) 41 A. Crim .R. 125
Attorney General's Application under s.37 of the Crimes (Sentencing Procedure) Act 1999 (2002) 56 NSWLR 146
White (1981) 28 SASR 9
Murrell (1985) 4 FCR 168
Morgan (1993) 70 A. Crim .R. 368
Lowe (1984) 154 CLR 606
Postiglione (1997) 189 CLR 295
Doggett (CCA, unreported 24 March 1997)

PARTIES:
REGINA v.
HUMPHRIES, Joshua

FILE NUMBER(S):
CCA No. 2005/770

COUNSEL:
Crown: J. Dwyer
App: H. Dhanji

SOLICITORS:
Crown: S. Kavanagh
App: S.E. O'Connor

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
04/31/0222

LOWER COURT JUDICIAL OFFICER:
Coolahan, DCJ.

No. 2005/770

SULLY, J.
HIDDEN, J.
HALL, J.
TUESDAY 6 SEPTEMBER 2005

REGINA v. JOSHUA LUKE HUMPHRIES

Judgment

1 SULLY, J: I agree with Hall, J.

2 HIDDEN, J: I agree with Hall, J.

3 HALL, J: The applicant seeks leave to appeal in respect of a sentence imposed upon him by his Honour Judge Coolahan in the Newcastle District Court on 25 November 2004 after he had pleaded guilty to three counts of break, enter and steal contrary to s.112(1) of the Crimes Act, 1900 (NSW) on a joint indictment with a co-offender, his brother, Adam Humphries.

4 On that date, the applicant requested the District Court to take into account, in dealing with him for those three offences, a further seven offences on a Form 1. The additional offences comprised a further six counts of break, enter and steal committed between 16 July 2003 and 30 September 2003, and one count of making a false statement contrary to the Pawnbrokers & Second Hand Dealers Act 1996 on 10 September 2003.

Factual background

5 The applicant is presently aged 22 years (date of birth 12 April 1983). He left school at age 16 years, in Year 9 and worked for approximately two years in an electro-plating firm and then later as a roof tiler before joining his brother at Swan Bay.

6 On 5 November 2004, the applicant gave evidence following the conclusion of evidence given by his brother. On that occasion he told the court that he had left Sydney to come to Newcastle in 1996. His brother followed him at some point in the late 1990’s and…

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 Humphries

Details

AGLC: Regina v Humphries [2005] NSWCCA 305
Case: [2005] NSWCCA 305
Decision Date: 6 September 2005

CaseChat Overview and Summary

The case of Regina v Humphries involved an application for leave to appeal against sentence by the applicant, who had been convicted of criminal charges alongside his brother. The brothers had both been sentenced to lengthy terms of imprisonment. The application was heard in the High Court of Australia, which was tasked with determining whether the disparity in sentences between the two brothers warranted a less severe sentence for the applicant. The central issue before the court was whether the applicant's sentence, which was identical to that of his brother, constituted an unjustifiable sense of grievance.

The court examined the basis upon which the applicant argued for a disparity in sentencing. It was noted that the applicant's primary contention was that his age should have been a factor in determining a lesser sentence. However, the court found that the facts of the case did not provide a legitimate ground for distinguishing between the sentences of the two brothers. The court held that while age may be a relevant factor in sentencing, it alone was not sufficient to justify a disparity in these circumstances. The court emphasised that both brothers had participated equally in the criminal activities, and there was no evidence to suggest that the applicant's role or culpability was significantly different from that of his brother. Therefore, the court found that the sentences imposed were justified and did not constitute an unjustifiable sense of grievance.

In conclusion, the High Court of Australia dismissed the application for leave to appeal against sentence. The court found that the applicant's argument for a disparity in sentencing was not supported by the facts of the case. The court held that the sentences imposed were appropriate given the nature of the crimes and the roles of the applicants within those crimes. The court found no basis for distinguishing between the sentences of the two brothers, and therefore the application was dismissed. The final orders of the court were that the applicant's application for leave to appeal against sentence be dismissed, and that the original sentences be upheld.

Orders