Regina v Niass - [2004] NSWCCA 149

CITATION: Regina v Niass [2004] NSWCCA 149

HEARING DATE(S): 10/05/04

JUDGMENT DATE:
14 May 2004

JUDGMENT OF: Hodgson JA at 1; Levine J at 2; Hidden J at 3

DECISION: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - Sentence - Crown appeal - break enter and steal - suspended sentence - delay - prospects of rehabilitation - whether sentence inadequate

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED: Mill v The Queen (1988) 166 CLR 59
R v Blanco (1999) 106 ACrimR 303
R v Hayes [2001] NSWCCA 358
R v Ponfield (1999) 48 NSWLR 327
R v Todd (1982) 2 NSWLR 517
R v Zamagias [2002] NSWCCA 17
R v Foster [2001] NSWCCA 215

PARTIES :
Regina - Applicant
Barry John Niass - Respondent

FILE NUMBER(S): CCA 60035/04

COUNSEL: G Rowling - Crown
H Dhanji - Respondent

SOLICITORS: S Kavanagh - Crown
SE O'Connor - Respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/0119

LOWER COURT
JUDICIAL OFFICER : Payne DCJ

60035/04

HODGSON JA
LEVINE J
HIDDEN J
Friday 14 May 2004

Regina v Barry John Niass

Judgment

1 HODGSON JA: I agree with Hidden J.

2 LEVINE J: I agree with Hidden J.

3 HIDDEN J: After a trial at the Parramatta District Court before Payne DCJ and a jury, the respondent, Barry John Niass, was found guilty of a charge of break enter and steal: an offence under s112(1) of the Crimes Act, carrying a maximum penalty of fourteen years imprisonment. When he appeared for sentence he asked her Honour to take into account an offence of possessing a prohibited drug, arising from the fact that the police who arrested him in respect of the major offence found a small quantity of amphetamine in his possession. Taking that matter into account, her Honour sentenced him to imprisonment for two years with a non-parole period of fifteen months, but suspended that sentence under s12 of the Crimes (Sentencing Procedure) Act upon his entering into a bond to be of good behaviour for the period of the sentence. Pursuant to s5D of the Criminal Appeal Act, the Director of Public Prosecutions appeals against that sentence.

Facts

4 In the early hours of 24 December 2001, the respondent and two other men broke into a factory at Guildford through a side door, having removed a padlock from a perimeter fence. They then broke through an inner wall and opened a roller-door. They “hot wired” a Bobcat loader, valued at about $45,000, drove it through the roller-door and onto a truck, using heavy metal ramps. However, the further pursuit of the offence was frustrated by the arrival of the police, who had been contacted by a member of the community who saw the truck. By the time they arrived, the Bobcat was on the back of the truck and the truck’s motor was running. The respondent was arrested but his co-offenders got away.

5 Her Honour found that it was the respondent…

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 Niass

Details

AGLC: Regina v Niass [2004] NSWCCA 149
Case: [2004] NSWCCA 149
Decision Date: 14 May 2004

CaseChat Overview and Summary

The matter of Regina v Niass was heard in the New South Wales Court of Criminal Appeal. The appellant, Niass, was convicted of breaking and entering and stealing. The Crown appealed against the sentence imposed by the trial judge, arguing it was inadequate. The appeal raised questions about the adequacy of the sentence in light of the nature of the offence and the delay in sentencing, as well as the prospects of the appellant's rehabilitation.

The central legal issues before the court were whether the sentence was manifestly inadequate and whether the delay in sentencing and the appellant's prospects of rehabilitation warranted a more severe penalty. The court considered the principles of sentencing, including the need for deterrence and the rehabilitation of offenders, as well as the relevant statutory provisions and precedents. The Crown submitted that the sentence of a suspended sentence did not reflect the seriousness of the offence, given the delay in bringing the matter to trial and the appellant's history of offending.

The Court of Criminal Appeal found that the sentence was inadequate in light of the seriousness of the offence and the delay in sentencing. The court noted that the trial judge had taken into account the appellant's prospects of rehabilitation but had not adequately weighed the need for general deterrence. The court held that the sentence should have been more severe to adequately reflect the gravity of the offence and the delay in sentencing. Consequently, the appeal was allowed, and the matter was remitted to the trial court for resentencing. The court emphasised the importance of considering all relevant factors, including the delay in sentencing and the offender's prospects of rehabilitation, in determining an appropriate sentence.

Orders