Regina v Shaw - [2001] NSWCCA 44

Reported Decision:
121 A Crim R 25

New South Wales

Court of Criminal Appeal

CITATION: Regina v Shaw [2001] NSWCCA 44

FILE NUMBER(S): CCA 60465/99

HEARING DATE(S): 20/02/01

JUDGMENT DATE:
20 February 2001

PARTIES :

Regina v Christopher James Shaw

JUDGMENT OF: Mason P at 39; Whealy J at 1; Howie J at 40

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0148

LOWER COURT JUDICIAL
OFFICER : Kirkham DCJ

COUNSEL : C. K. Maxwell QC - Crown
J. Gillespie - Appellant

SOLICITORS: S. E. O'Connor - DPP
------ - Appellant

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986
Crimes (Sentencing) Procedure 1999

CASES CITED:
R v Hill (1999) NSWCCA 140
R v Thomson and R v Houlton (2000) 49 NSWLR 383 at 419
R v Gordon (1994) 71 A Crim R 459 at 465
R v Day (1998) 100 A Crim R 275
Re Attorney General's Application No 1 Under s 26 of the Criminal Procedure Act; R v Ponfield; R v Scott; R v Ryan; R v Johnston (1999) 48 NSWLR 327 at 337, para 48
Pearce v The Queen (1998) 72 ALJR 1416

DECISION: Leave be granted. Appeal allowed. The sentence imposed by his Honour Judge Kirkham on 3 June 1999 be set aside and in lieu thereof a sentence be imposed in relation to each count of imprisonment for a term of 4 years with a non parole period of 2-1/2 years, commencing on 1 March 1999 and expiring on 31 August 2001. The applicant will be eligible for release on parole on 1 September 2001.

IN THE COURT

OF CRIMINAL APPEAL

60465/99

MASON P
WHEALY J
HOWIE J

TUESDAY 20 February 2001

REGINA v Christopher James SHAW

JUDGMENT

1 WHEALY J: The applicant, Christopher James Shaw, seeks leave to appeal against the severity of sentence imposed by Kirkham DCJ on 3 June 1999 at Gosford District Court. The applicant had entered pleas of guilty at Gosford Local Court on 9 March 1999 to three counts of break enter and steal. This offence carries a maximum penalty of fourteen years imprisonment (Crimes Act s 112(1)).

2 His Honour was also asked to take into account three additional matters on a Form 1, namely, offences of drive in manner dangerous, unlicensed driver, and self administer prohibited drug.

3 His Honour did take those matters into account and he sentenced the applicant to penal servitude for a period of five years and four months on each count. In each case a minimum term of four years, commencing 1 March 1999 was imposed, together with an additional term of one year and four months.

4 The facts in relation to each break enter and steal were unremarkable. On 30 January 1999, during the middle of the day, the applicant broke into a property at 72 Ocean Beach Road, Woy Woy. He obtained entry by removing a sliding glass window at the front of the house. He stole a computer and printer, a VCR, clothing, fishing…

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 Shaw

Details

AGLC: Regina v Shaw [2001] NSWCCA 44
Case: [2001] NSWCCA 44
Decision Date: 20 February 2001

CaseChat Overview and Summary

In the case of Regina v Shaw, the appellant, Christopher James Shaw, sought leave to appeal against the severity of the sentence imposed by Kirkham DCJ at Gosford District Court on 3 June 1999. Shaw had pleaded guilty to three counts of break enter and steal, offences carrying a maximum penalty of fourteen years imprisonment. The sentencing judge also considered additional matters, including driving in a dangerous manner, driving without a license, and self-administering a prohibited drug. His Honour imposed a sentence of five years and four months on each count, with a minimum term of four years, commencing 1 March 1999, together with an additional term of one year and four months. The appeal raised issues concerning the weight given to the early plea, the value of the stolen property, the absence of planning or skill in the commission of the offences, and the applicant's subjective circumstances.
The Court of Criminal Appeal held that the sentences imposed were excessive. The Court found that the sentencing judge was entitled to a significant discount for Shaw's early plea and admissions, but the sentences, when measured against statistical and comparative analysis, were at or towards the top of the range. The Court acknowledged the aggravating factor that the offences were committed while Shaw was on parole, but also noted the need for general deterrence. The Court found that the subjective circumstances of Shaw, including his depressed mental state and the hardship to his children, did not warrant a reduction in sentence. The Court determined that a sentence of four years with a non-parole period of two and a half years was warranted, in substitution for the sentence imposed by the sentencing judge. The Court set aside the original sentence and imposed a new sentence, commencing on 1 March 1999, with eligibility for parole on 1 September 2001.

Orders