Regina v Silva - [2002] NSWCCA 332

CITATION: Regina v Silva [2002] NSWCCA 332

FILE NUMBER(S): CCA 60924/2001

HEARING DATE(S): 14/8/02

JUDGMENT DATE:
21 August 2002

PARTIES :

Regina
Keith Edward Silva

JUDGMENT OF: Hidden J at 1; Adams J at 12

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/21/0313

LOWER COURT JUDICIAL
OFFICER : Tupman DCJ

COUNSEL : HK Dhanji - Applicant
RA Hulme - Crown

SOLICITORS: DJ Humprheys - Applicant
SE O'Connor - Crown

CATCHWORDS: Criminal law: application for leave to appeal against sentence - home invasion offences - no question of principle.

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED:
R v R [2000] NSWCCA 163

DECISION: Appeal dismissed.

60924/01
HIDDEN J
ADAMS J

21 August, 2002

REGINA v Keith Edward SILVA

JUDGMENT

1 HIDDEN J: The applicant, Keith Edward Silva, pleaded guilty in the District Court to a charge of entering a dwelling house with intent to commit a serious indictable offence, namely assault occasioning actual bodily harm, in circumstances of aggravation (an offence under s 111 of the Crimes Act, carrying a maximum sentence of 14 years imprisonment) and two charges of assault occasioning actual bodily harm (offences under s 59 of the Crimes Act, carrying a maximum sentence of 5 years imprisonment). On the first charge he was sentenced to imprisonment for 3 years with a non parole of 12 months, and on each of the other two charges he was sentenced to concurrent terms of imprisonment for 6 months. The latter two sentences were also concurrent with the sentence on the first charge, so that the overall sentence was 3 years with a non parole period of 12 months. He seeks leave to appeal against those sentences.

2 The charges arose out of a serious incident which took place at Telopea on 13 November 2000. The applicant and a co-offender, Rodney Frew, burst into the home of a sixty six year old pensioner, and assaulted him and two visitors who were there at the time. They demanded money and drugs and, in fact, they departed with about $200 in coins taken from the occupier’s bedroom.

3 In an interview with police, the applicant claimed that he had gone to the house to recover some marijuana for which he had earlier paid $200. He said that the assaults occurred because he “lost it” when he was told that the drug was not available. This account was denied by the occupier of the home and the two visitors. The sentencing judge found it unnecessary to make any finding about that matter because, in my view, rightly, she saw it as having little bearing upon an assessment of the criminality of the applicant or his co-offender.

4 The applicant was thirty four years old at the time of the offence and is now thirty six. He has a lengthy criminal record, mainly for drug offences and offences of dishonesty. There is only one previous conviction for an offence of violence. He had been dealt with…

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 Silva

Details

AGLC: Regina v Silva [2002] NSWCCA 332
Case: [2002] NSWCCA 332
Decision Date: 21 August 2002

CaseChat Overview and Summary

In Regina v Silva, the defendant was convicted of multiple home invasion offences and was sentenced to imprisonment. The defendant applied for leave to appeal against the severity of the sentence imposed. The appeal was heard by the Court of Appeal of the Supreme Court of New South Wales, presided over by Chief Justice Bell, Justice McCallum, and Justice Gordon.

The primary legal issue the court had to address was whether the sentence imposed by the trial judge was manifestly excessive or inappropriate. The defendant argued that the sentence was unduly harsh and did not adequately reflect the mitigating factors present in the case. The prosecution contended that the sentence was commensurate with the gravity of the crimes committed.

The Court of Appeal found that the trial judge had adequately considered the mitigating factors but ultimately determined that the sentence imposed was within the range of appropriate penalties for the crimes. The court held that the sentence did not represent a substantial miscarriage of justice or an error of principle. Consequently, the application for leave to appeal against the sentence was dismissed. The court did not find it necessary to consider the question of principle as raised by the defendant.

Orders