Regina v Sullivan - [2002] NSWCCA 312

CITATION: REGINA v. SULLIVAN [2002] NSWCCA 312

FILE NUMBER(S): CCA No. 60803 of 2001

HEARING DATE(S): Thursday 1 August 2002

JUDGMENT DATE:
1 August 2002

PARTIES :

REGINA v.
SULLIVAN, Gerard Allan

JUDGMENT OF: Sperling J at 27; Greg James J at 1

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/31/0126

LOWER COURT JUDICIAL
OFFICER : Job, DCJ.

COUNSEL : Crown: D. Woodburne
App: P. Strickland

SOLICITORS: Crown: S.E. O'Connor
App: D.J. Humphreys

CATCHWORDS: Criminal law - sentence - armed robbery with offensive weapon - appropriate discount for plea - appropriate allowance for voluntary custodial rehabilitation programme - error in failing to follow principles in Thomson & Houlton - applicant re-sentenced.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CASES CITED:
Thomson & Houlton (2000) 49 NSWLR 383
Sharma [2002] NSWCCA 142
Marschall [2002] NSWCCA 197
Aiken [2001] NSWCCA 40

DECISION: Leave to appeal granted; appeal upheld; the sentence and non-parole period imposed in the District Court be set aside; the applicant be re-sentenced to imprisonment for four years and one month to date from 7.11.01 with a non-parole period of two years and three months to expire on 6.2.04.

No. 60803 of 2001

SPERLING, J.
GREG JAMES, J.
THURSDAY 1 AUGUST 2002

REGINA v. GERARD ALLAN SULLIVAN

Judgment

1 GREG JAMES, J: Gerard Allan Sullivan seeks leave to appeal from a sentence imposed upon him in the District Court of New South Wales following his plea of guilty to the crime of armed robbery with an offensive weapon. That crime is punishable under s.97(1) of the Crimes Act 1900 by a maximum penalty of 20 years imprisonment.

2 The learned trial judge in his remarks on sentence referred to the particulars pleaded of the offence, that is, that on 2 March 2001 at Gosford the applicant, being then armed with an offensive weapon, namely a knife, did rob Melissa Eve Neilson of certain property, namely a backpack, key purse, silver necklace and a quantity of cash.

3 The trial judge found, having regard to the statement of facts tendered in evidence that what had occurred was, at about 8.10 pm on Friday 2 March 2001 Ms. Neilson was walking south on the eastern side of Mann Street, Gosford. When she reached a point in that street near the intersection of Racecourse Road and Mann Street she crossed over to the western side of the road.

4 A red Mitsubishi sedan was parked facing north in Mann Street. The offender got out of the car, approached her saying, “You wouldn’t know anywhere I could fucking get on?”. She attempted to walk around him but he seized her around the throat causing her silver necklace to break and fall to the ground. He produced a knife and held it to her throat saying “give me your fucking money”. He took hold of her handbag and pulled it from her shoulder and pushed her to the ground. She landed heavily on the ground causing immediate intense pain to her left…

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 Sullivan

Details

AGLC: Regina v Sullivan [2002] NSWCCA 312
Case: [2002] NSWCCA 312
Decision Date: 1 August 2002

CaseChat Overview and Summary

In the matter of Regina versus Sullivan, the defendant was convicted of armed robbery with an offensive weapon. Sullivan appealed the severity of the sentence, claiming that the original sentencing judge had erred in not appropriately discounting the sentence for his early guilty plea and in not allowing for his participation in a voluntary custodial rehabilitation programme. The appeal was heard by the Court of Criminal Appeal, which was tasked with determining whether the trial judge had correctly applied the principles set out in the cases of Thomson and Houlton when assessing the appropriate sentence for Sullivan.

The primary legal issues before the Court of Criminal Appeal were whether the original sentencing judge had correctly considered the principles of discount for an early guilty plea and the allowance for voluntary custodial rehabilitation in sentencing Sullivan. The Court had to examine whether the judge's failure to apply the principles from Thomson and Houlton constituted a significant error in the sentencing process. The Court also had to consider whether these errors warranted a re-sentencing of the defendant.

The Court of Criminal Appeal found that the trial judge had indeed erred in not applying the principles from the cases of Thomson and Houlton. The Court held that the judge had failed to appropriately discount the sentence for Sullivan's early guilty plea and had not allowed for his participation in a voluntary custodial rehabilitation programme. As a result, the Court concluded that the errors were significant and led to an inappropriate sentence. Consequently, the Court of Criminal Appeal set aside the original sentence and ordered a re-sentencing of Sullivan, taking into account the principles from Thomson and Houlton.

Orders