Regina v Lestrange - [2001] NSWCCA 25

CITATION: Regina v Lestrange [2001] NSWCCA 25

FILE NUMBER(S): CCA 60805/99

HEARING DATE(S): 14/02/01

JUDGMENT DATE:
14 February 2001

PARTIES :

Regina v David Lestrange

JUDGMENT OF: James J at 46; Whealy J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/21/0160;
97/21/0283

LOWER COURT JUDICIAL
OFFICER : Christie DCJ

COUNSEL : M. C. Marien - Crown
Applicant in Person

SOLICITORS:
S. E. O'Connor - DPP

LEGISLATION CITED: Crimes Act 1900

CASES CITED:
R v Bailey (1988) 35 A Crim R 459 at 468
R v Smith (1987) 44 SASR 587 at 589
R v Peuna (Badgery-Parker J, NSWCCA 23 July 1992 unreported)
R v L (NSWCCA 17 July 1996 unreported)
Lowe v The Queen (1984) 154 CLR 606
Phelan v The Queen (1993) 66 A Crim R 446 at 449-450
Sellen v R (1991) 57 A Crim R 313
R v Henry (1999) 46 NSWLR 346
R v Vachalec (1981) 1 NSWLR 351, per Street CJ at 353-4
R v Martin (1990) 47 A Crim 168
R v Yousseff (CCA, unreported 4 September 1991)
Sellan v The Queen (1991) 57 A Crim R 313
R v Henry (1999) 46 NSWLR 346

DECISION: Leave to appeal granted. Appeal dismissed

IN THE COURT

OF CRIMINAL APPEAL

60805/99

JAMES J
WHEALY J

WEDNESDAY 14 February 2001

REGINA V David LESTRANGE

JUDGMENT

1 JAMES J: The Court is able to give an immediate decision. I call on Whealy J to give the first decision.

2 WHEALY J: The applicant, Mr Lestrange, was found guilty by a jury of robbery while in company (Crimes Act s 97(1)). The verdict was given on 6 July 1999. The facts may be very shortly stated. At 6.20pm on 23 December 1996 the applicant, with other persons, went to the Wareemba Liquorland store, Wareemba. There they accosted the victim and witnesses with a tyre lever. They demanded they lie on the floor whilst the store safe and cash register were pilfered. The applicant, with the other persons, then ransacked the cigarette cabinet, taking a quantity of cigarettes. They then left the store and were seen to enter a confirmed stolen motor vehicle and left the area.

3 The applicant appeared for himself, in the ultimate, when he came before Christie DCJ for sentence in the District Court on 3 December 1999. His Honour also dealt with three other matters where the applicant had on 13 August 1999 pleaded guilty. These were:

1. A count of aggravated robbery at Earlwood Post Office on 27 December 1996;

2. A count of robbery in company of one Sylvia Randall on 14 May 1998;

3. One count of robbery at the National Bank, Balmain on 14 May 1998, involving an amount of approximately $23,350.

4 There were also before his Honour a number of offences which were contained in a Form 1 document, and his Honour took those into account. There is no need to set those out in detail as they were set out in…

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 Lestrange

Details

AGLC: Regina v Lestrange [2001] NSWCCA 25
Case: [2001] NSWCCA 25
Decision Date: 14 February 2001

CaseChat Overview and Summary

In Regina v Lestrange, the Court of Criminal Appeal considered an appeal against sentence brought by David Lestrange, who was found guilty of multiple counts of robbery while in company and other related offences. The primary legal issues before the court were whether the sentencing judge failed to properly consider Lestrange’s physical and mental disabilities, whether the sentence imposed was excessive, and whether the judge should have found special circumstances warranting a longer period of conditional release. The court found that the sentencing judge, Christie DCJ, had given significant weight to Lestrange’s disabilities, particularly his stroke, in determining the sentence. The judge had also recommended that the prison authorities provide appropriate treatment, including physiotherapy, for Lestrange’s condition. The court held that it was not its role to interfere with the prison authorities’ responsibility to provide medical care, citing relevant case law. The court further found that the sentence, while severe, was not manifestly excessive given the seriousness of the crimes and Lestrange’s extensive criminal record. The court concluded that the sentencing judge had appropriately exercised his discretion and found no grounds for special circumstances. Consequently, the Court of Criminal Appeal granted leave to appeal but dismissed the appeal.

Orders