REGINA v Silver - [1999] NSWCCA 108

CITATION: REGINA v SILVER [1999] NSWCCA 108

FILE NUMBER(S): CCA 60746/98

HEARING DATE(S): 18/03/99-19/03/99

JUDGMENT DATE:
12 May 1999

PARTIES :

Troy David SILVER

JUDGMENT OF: Spigelman CJ at 1; Wood CJ at CL at 2; Newman J at 3; Hulme J at 4; Simpson J at 7

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/31/0368

LOWER COURT JUDICIAL OFFICER: Johnston ADCJ

COUNSEL: P M Strickland (Silver)
P G Berman (Crown)

SOLICITORS: T A Murphy (Silver)
R Gray (Crown)

CATCHWORDS: CRIMINAL LAW; sentencing; aggravated armed robbery, s97(2) Crimes Act 1900; appropriate sentence; double jeopardy; failure to give reasons for finding "special circumstances", s5(2) Sentencing Act 1989

ACTS CITED: Crimes Act 1900 (NSW)
Sentencing Act 1989 (NSW)

DECISION: Appeal dismissed

- 18 -
IN THE COURT OF
CRIMINAL APPEAL

60746/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J
Wednesday 12 May 1999

REGINA v Troy David SILVER
JUDGMENT

1 SPIGELMAN CJ: I have read the judgment of Simpson J. I agree with her Honour’s reasons and the order she proposes.
**********

IN THE COURT OF
CRIMINAL APPEAL
No. 60746/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

Wednesday 12 May 1999

REGINA v Troy David SILVER
JUDGMENT
2 WOOD CJ at CL: I have read in draft the judgment of Simpson J. I agree with the order her Honour proposes and with the reasons given for dismissing this appeal.
**********

IN THE COURT OF
CRIMINAL APPEAL

60746/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J
Wednesday 12 May 1999

REGINA v Troy David SILVER
JUDGMENT

3 NEWMAN J: I agree with Simpson J.
**********

IN THE COURT OF
CRIMINAL APPEAL

No 60746 of 1998

SPIGELMAN CJ
WOOD CJ AT CL

NEWMAN J
HULME J

SIMPSON J
Wednesday 12 May 1999
REGINA -v- Troy David SILVER
JUDGMENT

4. HULME J: In this matter, I agree with the order proposed by Simpson J that the appeal should be dismissed and, subject to one matter, generally with Her Honour’s Reasons for that decision.

5. I do not agree that in the circumstances of the case the total term of 3 years was not manifestly inadequate. The robbery was at an isolated truck stop café and service station at Gurley. It involved substantial premeditation including driving from Gunnedah to Moree to Goondiwindi (about 300kms) and part of the way back in search of a place to rob. The offenders equipped themselves with balaclavas and a replica pistol. The robbery was conducted in company using this equipment. The barrel of the pistol was placed against the victim’s temple and later his head struck with it. He feared he would be shot.

6. Notwithstanding the subjective matters which can be urged in favour of the Respondent, for such conduct a sentence of imprisonment for a total term of 3 years is wholly inadequate.
IN THE COURT OF
CRIMINAL APPEAL

60746/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J

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 Silver

Details

AGLC: REGINA v Silver [1999] NSWCCA 108
Case: [1999] NSWCCA 108
Decision Date: 12 May 1999

CaseChat Overview and Summary

Regina v Silver was a case heard by the New South Wales Court of Criminal Appeal, which involved a sentencing appeal following a conviction for aggravated armed robbery. The appellant, Silver, had been found guilty of committing an aggravated armed robbery, which included the use of a firearm, and was sentenced to a term of imprisonment. The appeal was concerned with the appropriateness of the sentence and the procedural fairness of the sentencing process.

The primary legal issues before the court were whether the sentence imposed was appropriate given the severity of the offence and whether the trial judge failed to provide adequate reasons for finding that the offence involved "special circumstances" under section 5(2) of the Sentencing Act 1989. The appellant argued that the sentence was excessive and that the judge did not sufficiently justify the determination of special circumstances, which impacted the length of the sentence.

The Court of Criminal Appeal found that the sentence was appropriate, taking into account the seriousness of the crime and the need for deterrence. The court also concluded that, while the judge did not provide detailed reasons for the special circumstances finding, the overall record demonstrated that the judge considered the relevant factors. The court held that the failure to provide comprehensive reasons did not render the sentence invalid, as the essential considerations were evident from the context of the sentencing hearing. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders