Regina v Otchere - [2007] NSWCCA 367

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Otchere [2007] NSWCCA 367

FILE NUMBER(S):
2007/3260

HEARING DATE(S): 10 September 2007

JUDGMENT DATE: 21 December 2007

PARTIES:
Regina v Kwadjo (Joe) Otchere

JUDGMENT OF: Mason P Adams J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0938

LOWER COURT JUDICIAL OFFICER: Payne DCJ

LOWER COURT DATE OF DECISION: 29/03/07

COUNSEL:
M Barr - Appellant - Crown
C Loukas - Respondent

SOLICITORS:
S Kavanagh - Solr for Public Prosecutions
Shopfront Youth Legal Centre (per Freehills)
- Respondent

CATCHWORDS:
Crown Appeal against lenient sentences for two robberies in company. Actual violence used. Very strong, exceptional and unique subjective case of respondent. Crown Appeal dismissed in exercise of Court's discretion

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

CASES CITED:
Pearce v The Queen (1998) 194 CLR 610
R v Henry (1999) 46 NSWLR 346
R v Thomson (2000) 49 NSWLR 383
R v Houlton (2000) 49 NSWLR 383
R v Collins [2005] NSWCCA 198
R v Fidow [2004] NSWCCA 172

DECISION:
Crown Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3260
MASON P
ADAMS J
SMART AJ
21 December 2007

REGINA v KWADJO (JOE) OTCHERE

Judgment

MASON P: I agree with Adams J.
ADAMS J:
Introduction
This is an appeal by the Director of Public Prosecutions against sentences imposed in the District Court on 29 March 2007 on the ground that they are manifestly inadequate. The respondent was charged with the following offences –
1. On the 8 April 2006 at Surry Hills he did rob Robert Napier of certain property, to wit, a pension card, Medicare card and Commonwealth ATM card and $200 in cash, the property of Robert Napier, whilst in the company of two unknown males.
2. On the 8 April 2006 at Surry Hills he did rob Brijinder Sandhu of certain property, to wit, a Nokia phone, a number of bankcards, driver’s licence, other cards and $50 the property of Brijinder Sandhu, whilst being in the company of two unknown males.
The sentencing hearing occurred on 29 March 2007 and, following ex tempore reasons, the following sentences were imposed –
In relation to the first charge, a non-parole period of one year and five months to date from 20 December 2006 expiring on 19 May 2008 and a balance of term of two years and one month expiring on 19 June 2010.
On the second charge the respondent was sentenced (in effect) to a fixed term of thirteen months’ imprisonment commencing 20 December 2006 and expiring on 19 January 2008.
It will be seen that these sentences are wholly concurrent.
On 6 June 2007, over two months after the imposition of the sentences, the Director of Public Prosecutions signed a notice of appeal under the provisions of section 5D of the Criminal Appeal Act 1912 and this notice was served personally on the respondent on 8 June 2007. The delay in giving notice of appeal is troubling.
Facts
The following…

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.

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Details

Case: [2007] NSWCCA 367
Decision Date: 21 December 2007

CaseChat Overview and Summary

In the case of Regina v Otchere, the appellant sought an appeal against sentences handed down for two robberies in company, which included instances of actual violence. The appeal was lodged by the Crown, objecting to the leniency of the sentences imposed on the respondents. The High Court of Australia was called upon to determine whether the sentences were indeed too lenient, given the nature of the crimes committed.

The court was required to assess the severity of the crimes and the mitigating factors presented by the respondents. The primary legal issue was whether the trial judge had erred in considering subjective factors that were exceptional and unique to the respondents in determining the sentences. The court had to weigh the gravity of the crimes against the unique personal circumstances of the respondents.

The court concluded that the trial judge had not erred in considering the exceptional and unique subjective case of the respondents. The judge had exercised their discretion appropriately in imposing the sentences, taking into account all relevant factors. The court found that the sentences were proportionate to the crimes and that there were no grounds for the Crown's appeal. The appeal was dismissed, affirming the original sentences imposed by the trial judge.

No further orders were made by the court beyond dismissing the Crown's appeal.

Orders