Regina v Olive - [2006] NSWCCA 329

CITATION: Regina v Olive [2006] NSWCCA 329

HEARING DATE(S): 12/10/06

JUDGMENT DATE:
12 October 2006

JUDGMENT OF: Tobias JA at 1; Grove J at 40; Bell J at 2

EX TEMPORE JUDGMENT DATE: 10/12/2006

DECISION: Grant leave to appeal; Dismiss the appeal.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Majors (1991) 27 NSWLR 624
R v Morgan (1993) 70 A Crim R 368
R v Osenkowski (1982) 30 SASR 212
R v Palu (2002) 134 A Crim R 174
R v Rawson [2001] NSWCCA 399
R v Zahab [2002] NSWCCA 430

PARTIES: Jarrod Michael Olive (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/1710

COUNSEL: Wayne Condon (Solicitor) (Applicant)
Nicole Noman (Crown) (Respondent)

SOLICITORS: La Fontaine Solicitors (Applicant)
S Kavanagh (DPP)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 5/41/0169

LOWER COURT JUDICIAL OFFICER: Rein DCJ

2006/1710

TOBIAS JA
GROVE J
BELL J
THURSDAY 12 OCTOBER 2006

JARROD MICHAEL OLIVE v REGINA

Judgment

1 TOBIAS JA: I will ask Bell J to give the first judgment.

2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed on the applicant in the District Court on 16 December 2005, following his plea of guilty to a charge of assault with intent to rob while armed with an offensive weapon. The charge is provided by section 97(1) of the Crimes Act, and carries a maximum sentence of 20 years imprisonment.

3 The applicant was sentenced to two years and three months imprisonment, comprising a non-parole period of 15 months, and a balance of 12 months. The sentence commenced on 15 December 2005 and the non-parole period will expire on 14 March 2007. The balance of the sentence will expire on 14 March 2008. The Judge directed that the applicant be released to parole at the expiration of the non-parole period, subject to conditions, including that he accept the supervision of the Probation and Parole Service.

4 The facts upon which the Judge sentenced the applicant are as follows:

The immediate circumstances of the offence are that on 14 March 2005 the offender went into a video store at 219 Princes Highway, Corrimal owned by Mr and Mrs New. Mrs New was serving in the store behind the counter and Mr New was on the premises but not in proximity to her. The offender said to Mrs New, ‘I’ve got a syringe. I’ve got HIV, open the till, give me the money’. Mrs New could see that the offender had a syringe with red liquid in it. She jumped back, fearful that he was going to stab her with it. The offender then leapt up over the counter, grabbed her by both hands, grabbing one of her hands with his right hand and her other hand with his left, he told her to open the till, in a loud voice, squeezing her fingers really hard. She thought that he still had the syringe in his hand and that she would…

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 Olive

Details

AGLC: Regina v Olive [2006] NSWCCA 329
Case: [2006] NSWCCA 329
Decision Date: 12/10/2006

CaseChat Overview and Summary

The case of Regina v Olive involved the applicant who sought leave to appeal against the severity of a sentence imposed by the District Court following his plea of guilty to a charge of assault with intent to rob while armed with an offensive weapon. The applicant had been found guilty and sentenced in the District Court, and he now sought leave to appeal to the higher court on the grounds that the sentence was excessively severe. The applicant's primary contention was that the sentence imposed was disproportionate to the nature and circumstances of the offence committed.

The central legal issue before the court was whether the sentence imposed by the District Court was manifestly excessive, thereby warranting the grant of leave to appeal. The applicant argued that the sentence was overly harsh and did not adequately reflect the mitigating factors present in his case. The court was required to assess the severity of the sentence in the context of the crime committed, taking into account the principles of sentencing proportionality and the specific statutory framework provided by section 97(1) of the Crimes Act.

In evaluating the application, the court considered the nature of the offence, the applicant's criminal history, and the circumstances surrounding the commission of the crime. The court found that while the offence was serious, the sentence imposed by the District Court was not manifestly excessive. The court held that the sentence was within the range of appropriate penalties for the offence and that it adequately reflected the seriousness of the crime while also considering the applicant's personal circumstances. Consequently, the court denied the applicant's application for leave to appeal against the severity of the sentence.

No further orders were made by the court.

Orders