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Renshaw v R

Renshaw v R

Case [2012] NSWCCA 91 15 May 2012

Sentencing

Appeal

Aggravated & Exemplary Damages

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RENSHAW v R [2012] NSWCCA 91
Hearing dates: 3 May 2012
Decision date: 15 May 2012
Before: HOEBEN JA at [1]
RS HULME J at [35]
FULLERTON J at [36]
Decision:
Leave to appeal is granted.
The appeal is allowed.
The sentence imposed by McLauchlan ADCJ on 5 September 2011 is quashed and in lieu thereof the applicant is sentenced to imprisonment with a non-parole period of 12 months, commencing 5 March 2011 and expiring 4 March 2012, with a balance of term of 10 months, expiring 4 January 2013.
The applicant is to be released to parole forthwith.

Catchwords: CRIMINAL LAW - sentence appeal - aggravated robbery - plea of guilty - applicant attending strict residential rehabilitation course over 14 months - rehabilitation very successful - failure of sentencing judge to take into account time on rehabilitation course as quasi-custody - need to take period of quasi-custody into account - backdating of commencement date of sentence.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Hughes v R [2008] NSWCCA 48
Regina v Campbell [1999] NSWCCA 76
R v Delaney [2003] NSWCCA 342
R v Kyroglou and Tsoukatos [1999] NSWCCA 106
Regina v Zamagias [2002] NSWCCA 17
Category: Principal judgment
Parties: Joel Paul Renshaw - Applicant
Regina - Respondent Crown
Representation: Counsel:
Ms A Francis - Applicant
Ms S Dowling - Respondent Crown
Solicitors:
B Sandiland - Legal Aid NSW - Applicant
S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2010/106020
Decision under appeal

Date of Decision:

2011-09-05 00:00:00

Before:

McLauchlan ADCJ

File Number(s):

2010/106020

Judgment

HOEBEN JA:

Offence and sentence

The applicant seeks leave to appeal from a sentence imposed on him on 5 September 2011 by Acting Judge McLauchlan in the District Court at Lismore following his plea of guilty to an offence of aggravated robbery arising out of events that took place at Murwillumbah on 29 April 2010. The aggravating circumstance was the infliction of actual bodily harm.

The offence of aggravated robbery was contrary to s95(1) Crimes Act 1900 and has a maximum penalty of imprisonment for 20 years.

The applicant was sentenced to imprisonment with a non-parole period of 12 months commencing 5 September 2011 and expiring 4 September 2012 with a balance of term of 10 months to expire on 4 July 2013.

The applicant relies upon the following grounds of appeal.

Ground 1 - The sentencing judge erred by failing to have regard to the mitigating factors, namely the applicant's personal history, his assistance to authorities and the absence of planning in the commission of the offence.

Ground 2 - The sentencing judge erred by failing to comply with the mandatory conditions of s24(d) Crimes Sentencing Procedure Act 1999. (This ground of appeal was not pursued.)

Ground 3 - The sentencing judge erred by failing to allow the applicant a discount upon his sentence for the quasi-custody served in rehabilitation.

When the matter…

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 Renshaw v R

Details

AGLC: Renshaw v R [2012] NSWCCA 91
Case: [2012] NSWCCA 91
Decision Date: 15 May 2012

CaseChat Overview and Summary

The case of Renshaw v R involved the appellant who was appealing against the sentence imposed by the sentencing judge. The appellant pleaded guilty to an offence of aggravated robbery. The legal issues before the court included whether the sentencing judge appropriately considered the time the appellant spent attending a strict residential rehabilitation course as a form of quasi-custody when calculating the sentence. The appellant had spent over 14 months in this rehabilitation program, which was deemed very successful. The court had to determine whether the sentence imposed was appropriate and whether the time spent in the rehabilitation course should be considered as quasi-custody for the purposes of backdating the commencement date of the sentence.

The court found that the sentencing judge failed to adequately take into account the time the appellant spent in the rehabilitation course as quasi-custody. This oversight was significant because the rehabilitation program was a strict and structured environment akin to custody. The court emphasised that such periods should be considered when determining the length of the sentence to ensure the overall punishment is just and proportionate. Additionally, the court concluded that the commencement date of the sentence should be backdated to reflect the time spent in the rehabilitation course. This backdating was necessary to ensure the sentence was correctly calculated and reflected the full period of the appellant's confinement.

As a result of the court's findings, the appeal was allowed, and the matter was remitted to the sentencing court for reconsideration of the sentence. The court directed that the time spent in the rehabilitation course should be taken into account as quasi-custody and that the sentence should be backdated accordingly. This decision underscored the importance of considering all relevant factors in sentencing, particularly where an offender participates in a structured rehabilitation program that is comparable to custodial sentences.

Orders