Rich v Regina - [2007] NSWCCA 193

New South Wales
Court of Criminal Appeal

CITATION: Rich v Regina [2007] NSWCCA 193

HEARING DATE(S): 25 June 2007

JUDGMENT DATE:
5 July 2007

JUDGMENT OF: Giles JA at 1; James J at 39; Hislop J at 40

DECISION: Leave to appeal against sentence granted. Appeal dismissed.

CATCHWORDS: Criminal law - sentencing - break enter and steal and other charges - whether errors in sentencing concerning planned or organised criminal activity, regard to fact offender had children and treatment of offences on a Form 1 - no errors - whether sentences manifestly excessive - not lenient but within range open to judge.

CASES CITED: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146;
Fahs v R [2007] NSWCCA 26;
R v Argent [2004] NSWCCA 270;
R v Danaca [2005] NSWCCA 45;
R v Edwards (1996) 90 A Crim R 510;
R v Girard [2004] NSWCCA 170;
R v Lay [2006] NSWCCA 45;
R v Muir [1999] NSWCCA 71;
R v Tarpey [2001] NSWCCA 300;
R v X [2004] NSWCCA 93;
Re Attorney General's Application (No 1) of the Criminal Procedure Act, R v Ponfield (1999) 48 NSWLR 327.

PARTIES: Lynda Ann Rich - Applicant
The Crown - Resppondent

FILE NUMBER(S): CCA 2007/1037

COUNSEL: J Stratton - Applicant
R A Herps - Respondent

SOLICITORS: S O'Connor - Legal Aid Commission
S Kavanagh - Solicitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/0052

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

LOWER COURT DATE OF DECISION: 31 October 2006 (Sentence)

CCA 2007/1037
DC 06/21/0052

GILES JA
JAMES J
HISLOP J
Thursday 5 July 2007

Lynda Ann RICH v REGINA

Judgment

1 GILES JA: The applicant pleaded guilty to two charges of break enter and steal and one charge of obtaining benefit by deception, with a further seven offences on a Form 1 taken into account in sentencing for the second of the break enter and steal charges. The seven offences were four charges of break enter and steal and three charges of obtaining benefit by deception.

2 On 31 October 2006 the learned sentencing judge sentenced the applicant -

(a) for the first break enter and steal offence, to imprisonment for a non-parole period of 2 years 6 months commencing on 31 October 2006 and a balance of term of 3 years 4 months;

(b) for the second break enter and steal offence, to imprisonment for a non-parole period of 4 years commencing on 31 October 2007 and a balance of term of 7 years; and

3 The sentences for the break enter and steal offences were thus largely concurrent, and the sentence for the offence of obtaining benefit by deception was wholly concurrent with the sentence for the second of…

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 Rich v Regina

Details

AGLC: Rich v Regina [2007] NSWCCA 193
Case: [2007] NSWCCA 193
Decision Date: 5 July 2007

CaseChat Overview and Summary

The appellant, Rich, was convicted of break enter and steal, among other charges, and appealed against his sentence. The appeal was heard by the High Court of Australia. The central issue before the court was whether there were any errors in the sentencing process, particularly concerning the consideration of planned or organised criminal activity, the offender's status as a parent, and the treatment of offences on a Form 1. Additionally, the court examined whether the sentences imposed were manifestly excessive or lenient.

The court found that there were no errors in the sentencing process. It held that the trial judge had appropriately considered the nature and circumstances of the offences, including the fact that they were part of a planned and organised criminal activity. The court also determined that the trial judge had properly taken into account the appellant's status as a parent, although it noted that this factor did not necessarily warrant a reduced sentence. Furthermore, the court held that the treatment of offences on a Form 1 was correct, as it was a permissible method for sentencing in this case. The court concluded that while the sentences were not lenient, they were within the range open to the judge and were not manifestly excessive.

The appeal was dismissed, and the original sentences were upheld. The court emphasised that the trial judge had exercised their discretion appropriately in imposing the sentences, and there was no basis to interfere with the outcome. The sentences were therefore affirmed, and the appellant's appeal was unsuccessful.

Orders