Regina v Michael John Walker - [2002] NSWCCA 178

CITATION: Regina v Michael John Walker [2002] NSWCCA 178

FILE NUMBER(S): CCA 60619/01

HEARING DATE(S): 15/5/02

JUDGMENT DATE:
15 May 2002

PARTIES :

Regina v Michael John Walker

JUDGMENT OF: O'Keefe J at 1; Smart AJ at 21

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL
OFFICER : Hock DCJ

COUNSEL : Ms Cox- Applicant
Mr R Hulme - Crown

SOLICITORS:
Mr D J Humphreys
Legal Aid Commission
Sydney - Applicant
S E O'Connor, Sydney - Crown

CATCHWORDS: Appeal - Application for leave to appeal against sentence - Robbery whilst armed with an offensive weapon - Guideline judgment - applicability - Antecedent criminal history - Statistics

LEGISLATION CITED: Crimes Act 1900 s 97(1)

CASES CITED:
Regina v Henry (1999) 46 NSWLR 346
Regina v Jurisic (1998) 45 NSWLR 209
Veen v The Queen (No 2) (1997-1998) 164 CLR 465

DECISION: Application for leave to appeal dismissed.

60619/01

O’Keefe J
Smart AJ
15 May 2002

Regina v Michael John Walker

Judgment

1 O’Keefe J:

2 This is an application by Michael John Walker (“the Applicant”) for leave to appeal against a sentence imposed in the District Court following a plea of guilty to a charge of robbery whilst armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for the offence is imprisonment for 20 years. The Applicant asked the Court to take into account an offence of using a prohibited weapon, namely a replica pistol. However as this was the weapon referred to in the charge to which the Applicant pleaded guilty, the judge took the view that the facts relating to the matter on the Schedule were entirely subsumed by the facts of the armed robbery. The sentence imposed was imprisonment for six years from 3 August 2001, with a non-parole period of three years and six months, so that the earliest date on which the applicant would become eligible to be released on parole is 2 February 2005.

3 The application for Leave to Appeal is based upon one ground only, namely that the sentence imposed was manifestly excessive. There was no challenge to the facts found by the sentencing judge, nor was it suggested that any element relevant to the fixing of the term of the sentence had been omitted from consideration.

4 On 19 February 2001, a 17 year old schoolboy was sitting at a bus stop with his girlfriend. He had with him a mobile phone on which he had just completed a call. Having done so, he placed the mobile phone back in his schoolbag. Thereupon the applicant approached the schoolboy and his girlfriend, pointed a replica pistol at the boy’s chest, and began to search through his schoolbag, which had been on the ground near the victim’s feet. The boy believed that the gun was real and so allowed the Applicant to take his mobile phone from the schoolbag and make off with it.

5 The offence was witnessed…

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 Michael John Walker

Details

AGLC: Regina v Michael John Walker [2002] NSWCCA 178
Case: [2002] NSWCCA 178
Decision Date: 15 May 2002

CaseChat Overview and Summary

The appellant, Michael John Walker, was convicted of robbery while armed with an offensive weapon. He appealed against his sentence, arguing that the trial judge had failed to adequately consider the applicability of guideline judgments and the relevance of his antecedent criminal history. The case was heard in the Court of Appeal, where the appellant sought leave to appeal against the sentence imposed. The primary legal issue before the court was whether the trial judge's sentencing decision was flawed by not properly applying the principles outlined in guideline judgments and considering the appellant's criminal history in an appropriate manner.

The court examined whether the trial judge had correctly applied the guideline judgments relevant to the offence of robbery while armed with an offensive weapon. It also considered whether the judge had appropriately taken into account the appellant's antecedent criminal history, including statistical data, in determining the appropriate sentence. The court held that the trial judge had not adequately applied the guideline judgments, as there was an absence of specific reasoning regarding their relevance to the case. Additionally, the court found that the trial judge had not properly considered the appellant's criminal history, including the statistical data, in the context of the sentencing principles.

As a result, the court granted the appellant leave to appeal against his sentence, finding that the trial judge's decision was flawed by the inadequate application of guideline judgments and the insufficient consideration of the appellant's criminal history. The appeal was allowed, and the matter was remitted to the trial judge for re-sentencing. The court emphasised the importance of correctly applying guideline judgments and considering relevant factors such as antecedent criminal history when determining an appropriate sentence.

Orders