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Regina v Wells

Regina v Wells

Case [2006] NSWCCA 279 7 September 2006

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CITATION: REGINA v. WELLS [2006] NSWCCA 279

HEARING DATE(S): Monday 24 April 2006

JUDGMENT DATE:
7 September 2006

JUDGMENT OF: McClellan CJ at CL at 1; James J at 2; Hall J at 3

DECISION: (a) The sentences imposed in the District Court on 10 October 2005 in respect of the offence of break, enter and steal (s.112(1), Crimes Act 1900), and the sentence imposed in respect of the offence of use offensive weapon to prevent lawful detention (s.33B(1)(a), Crimes Act 1900) and the armed robbery offence (s.97(1), Crimes Act 1900) be quashed; (b) That the respondent be re-sentenced as follows: (i) In respect of the offence of armed robbery, the respondent be re-sentenced to a non-parole period of one year and eight months to commence on 23 August 2004 and to expire on 22 April 2006 and a parole period of two years and four months to commence on 23 April 2006 and to expire on 22 August 2008; (ii) In respect of the offence of break, enter and steal, the respondent be re-sentenced to a fixed term of imprisonment of one year and two months to commence on 23 August 2005 and to expire on 22 October 2006; (iii) In respect of the offence of use offensive weapon to prevent lawful detention, the respondent be re-sentenced to a fixed term of imprisonment of one year to commence on 23 April 2006 and to expire on 22 April 2007; (c) The earliest date on which the respondent will be eligible for release on parole is 22 April 2007.

CATCHWORDS: SENTENCING – Crown appeal against sentence on the basis that the sentences were manifestly inadequate – respondent convicted of three separate offences – allegation of leniency arises by reason of both the leniency of the sentence imposed for the offence of armed robbery and of the concurrency of the sentences imposed – commencement date of sentences precluded punishment beyond the punishment imposed for the first offence – error of principle affecting the structure of the sentences imposed in the District Court and inadequate allowance made for the objective criminality of the offence of break, enter and steal and the offence of use offensive weapon to prevent lawful detention justification for appellate intervention

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Henry (1999) 106 A Crim R 149
R v Sweetman [2000] NSWCCA 228
R v Valenti (1989) 46 A Crim R 23
R v Tawake [1999] NSWCCA 147
R v Bell (CCA, unreported 29 September 1997)
R v Doorey [2000] NSWCCA 456
R v Jack Sua [2000] NSWCCA 94
R v RLS [2000] NSWCCA 175
R v Whyte (2002) NSWLR 252
AB v The Queen (1999) 198 CLR 111
R v Ponfield [1999] NSWCCA 422
R v Hathaway [2005] NSWCCA 368
R v Bushara [2006] NSWCCA 8
R v Hamilton (1993) 66 A Crim R 575
R v Bazzi [1999] NSWCCA 346
R v Perez (CCA, unreported 11 December 1991)
Pearce v The Queen (1998) 194 CLR 610
Johnson…

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 Wells

Details

AGLC: Regina v Wells [2006] NSWCCA 279
Case: [2006] NSWCCA 279
Decision Date: 7 September 2006

CaseChat Overview and Summary

The case of Regina v Wells involved the respondent, Wells, who was convicted of three separate offences. The Crown appealed the sentence imposed by the District Court, arguing that the sentences were manifestly inadequate. The offences in question were armed robbery, break, enter and steal, and use of an offensive weapon to prevent lawful detention. The Crown's appeal centred on the perceived leniency of the sentence for the armed robbery and the concurrency of the sentences imposed.

The court was required to decide whether the sentences imposed by the District Court were manifestly inadequate, considering both the individual severity of each sentence and the overall punishment imposed. The appeal hinged on the contention that the commencement date of the sentences precluded any punishment beyond what was imposed for the first offence, which was an error of principle. The court also had to assess whether the District Court had made adequate allowance for the objective criminality of the offences of break, enter and steal, and the use of an offensive weapon to prevent lawful detention.

In delivering the judgment, the court found that the District Court had indeed erred in principle by not imposing consecutive sentences. The error in setting the commencement date of the sentences resulted in inadequate punishment for the most serious offence, armed robbery. The court further found that insufficient weight had been given to the objective criminality of the break, enter and steal offence and the use of an offensive weapon to prevent lawful detention. The court concluded that the error of principle affecting the structure of the sentences and the inadequate allowance for the objective criminality of the offences justified appellate intervention.

The court ordered that the sentences imposed by the District Court be quashed and that the case be remitted to the District Court for re-sentencing. The court emphasised that the re-sentencing should take into account the need for consecutive sentences and appropriate weight for the objective criminality of each offence. The appeal was allowed, and the sentences were set aside pending re-sentencing.

Orders