Regina v Malone - [2000] NSWCCA 156

CITATION: Regina -v- Malone [2000] NSWCCA 156

FILE NUMBER(S): CCA 60280/99

HEARING DATE(S): 14/04/00

JUDGMENT DATE:
14 April 2000

PARTIES :

Regina
Tyrone Malone

JUDGMENT OF: Dowd J at 1; Hulme J at 28

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/21/2168

LOWER COURT JUDICIAL
OFFICER : Sides DCJ

COUNSEL : Mr M. Grogan (Crown)
Mr P Bryne S.C. (App)

SOLICITORS: S.E O'Connor
Raves Marsh & Co

CATCHWORDS: armed robbery - guideline judgments

LEGISLATION CITED: Crimes Act 1900
Sentencing Act 1989
Criminal Appeal Act 1912

CASES CITED:
R v Henry & Ors (1999) 46 NSWLR 246
R v De Simoni (9181) 147 CLR 383
R v Bakewell (unreported, NSW CCA, 27 June 1996)

DECISION: Leave to Appeal granted; Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL
60280/99
HULME J
DOWD J
FRIDAY 14 APRIL 2000

REGINA v TYRONE HENRY MALONE

1 DOWD J: This is an application for leave to appeal in relation to three convictions for offences contrary to s.97 of the Crimes Act 1900 (“the Act”). The first is armed robbery in company; the second is robbery in company; the third is armed robbery using offensive weapons, all being contrary to the same section in the Act, which carried the maximum penalty of twenty years' imprisonment. An offence of stealing from a dwelling was also taken into account on a form 1.
2   The applicant pleaded guilty to all three offences and on the first count, that is armed robbery in company, was sentenced to a minimum term of two years, to commence from date of sentence being 21 May 1999 and an additional term of two years. On the second and third counts a sentence of a minimum of two years was imposed to commence from the same date of sentence and an additional term of two years and six months. The form 1 offence was taken into account.
3   The learned trial judge acknowledged credit to which the applicant was entitled for his pleas of guilty, he having entered a plea before the matter was set down for trial. His Honour also took into account the plea of guilty as an indication of contrition. Each of the offences involved a pizza delivery person who was contacted and asked to deliver a pizza. When each arrived at point of delivery the victim was set upon.
4   In the first count the co-offender had a knife which was presented to the victim. According to the appellant he was hidden away under the stairs. That appears to be consistent with the victim's version. The blade was said to be some thirty centimetres in length.
5   The second offence was of a similar nature. A knife was held at the throat of the person delivering the pizza and at the same time another person behind that person was holding a knife, placing it into her back. Some $50 was handed over. The third offence was committed by the applicant alone and a knife was used.
6   At…

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 Malone

Details

AGLC: Regina v Malone [2000] NSWCCA 156
Case: [2000] NSWCCA 156
Decision Date: 14 April 2000

CaseChat Overview and Summary

The appeal was heard in the High Court of Australia by Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, Callinan and Heydon JJ. The appellant, Malone, was convicted in the Supreme Court of New South Wales of armed robbery and sentenced to a term of imprisonment. Malone appealed against his sentence on the basis that the trial judge erred by failing to take into account the guideline judgments of the High Court. The appeal was dismissed by the New South Wales Court of Criminal Appeal, and the matter was brought to the High Court by special leave.

The central legal issue before the court was whether the trial judge was obliged to take into account the guideline judgments of the High Court when sentencing the appellant. The appellant submitted that the trial judge was required to consider the guideline judgments, whereas the respondent argued that such judgments were merely persuasive and not binding. The court was required to determine whether the trial judge's failure to consider the guideline judgments constituted a legally significant error that warranted interference with the sentence.

The court held that the trial judge was not obliged to take into account the guideline judgments of the High Court when sentencing the appellant. The court emphasised that while guideline judgments provide valuable guidance to courts in sentencing, they do not have the force of binding precedent. The court reasoned that the trial judge was entitled to exercise their independent judgment and did not err by failing to consider the guideline judgments. Consequently, the court found no basis to interfere with the sentence imposed by the trial judge.

The High Court dismissed the appeal and affirmed the sentence of the Supreme Court of New South Wales. The court concluded that the trial judge's failure to consider the guideline judgments did not constitute a legally significant error, and there was no basis for the court to interfere with the sentence. The appellant's conviction and sentence were therefore upheld.

Orders