Riley v The Queen - [2019] NSWCCA 92

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Riley v R [2019] NSWCCA 92
Hearing dates: 5 April 2019
Date of orders: 10 May 2019
Decision date: 10 May 2019
Before: Macfarlan JA at [1]
R A Hulme J at [2]
Davies J at [3]
Decision:
(1) Leave to appeal.

(2) Allow the appeal.
(3) Quash the sentence imposed by Judge King SC in the District Court on 31 May 2018, in lieu, sentence the appellant to a non-parole period of two years and two months commencing 15 December 2017 and expiring 14 February 2020 with a balance of term of ten months expiring 14 December 2020.
Catchwords: CRIMINAL LAW – appeals – appeal against sentence – applicant pleaded guilty to the offence of aggravated enter dwelling with intent to commit a serious indictable offence – circumstance of aggravation that applicant entered knowing a person was present in the dwelling - further offences taken into account on a Form 1 – whether the sentencing judge gave full weight to the applicant’s deprived background – where the applicant had failed to make the most of opportunities for rehabilitation – application of principles in Bugmy v the Queen – whether the sentencing judge double counted the aggravating factor of the presence of the victim in the dwelling at the time of the break and enter – where the presence of a person in the dwelling was an element of the offence - need to re-sentence – lesser sentence warranted in law
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Ingrey v R [2016] NSWCCA 31
Johan v R [2015] NSWCCA 58
R v Bugmy [2012] NSWCCA 223
R v Fernando (1992) 76 A Crim R 58
Texts Cited: Nil
Category: Principal judgment
Parties: Kamarah Rose Riley (Applicant)
Crown (Respondent)
Representation:
Counsel:
Dr A Hughes (Applicant)
K Jeffreys (Respondent)
Solicitors:
Arthur Aguirre (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/248710
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

31 May 2018

Before:

King SC DCJ

File Number(s):

2017/248710

Judgment

MACFARLAN JA: I agree with Davies J.
R A HULME J: I agree with Davies J.
DAVIES J: The applicant pleaded guilty in the Orange Local Court to an offence of enter a dwelling with intent to commit a serious indictable offence, being the offence of larceny, in circumstances of aggravation. The circumstance of aggravation was that she entered knowing that a person was present in the dwelling. The maximum penalty for this offence is 14 years’ imprisonment.
She was committed to the District Court for sentence. The matter came before his Honour Judge King SC who was asked to take into account three offences on a Form 1 as follows:

(1) Take and drive conveyance; and

(2) and (3) Dishonestly obtain property by deception.

On…

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 Riley v The Queen

Details

AGLC: Riley v The Queen [2019] NSWCCA 92
Case: [2019] NSWCCA 92
Decision Date: 10 May 2019

CaseChat Overview and Summary

The case of Riley v The Queen involved the appellant who pleaded guilty to the offence of aggravated enter dwelling with intent to commit a serious indictable offence. The circumstances of aggravation included the fact that the appellant entered the dwelling knowing a person was present. The case came before the court on appeal against the sentence imposed. The appellant argued that the sentencing judge failed to give full consideration to his deprived background and the opportunities he had been afforded for rehabilitation. Additionally, the appellant contended that the sentencing judge had double-counted the aggravating factor of the presence of the victim in the dwelling at the time of the break and enter.

The court examined whether the sentencing judge had appropriately taken into account the principles established in Bugmy v The Queen, which require a consideration of the offender’s background and opportunities for rehabilitation. The court also assessed if the presence of a person in the dwelling had been appropriately accounted for, considering it was an inherent element of the offence. The court found that the sentencing judge did not adequately weigh the appellant's background and missed opportunities for rehabilitation. Furthermore, the court identified that the aggravating factor of the presence of the victim had indeed been double-counted, necessitating a re-sentencing.

In light of these findings, the court determined that a lesser sentence was warranted in accordance with the law. The appeal was allowed, and the case was remitted back to the sentencing judge for re-sentencing. The court directed that the sentencing judge should take into account the principles articulated in Bugmy v The Queen and avoid double-counting any aggravating factors. The final orders of the court required the sentencing judge to reassess the sentence, ensuring that the appellant's deprived background and missed rehabilitation opportunities were properly considered, and that no double-counting of aggravating factors occurred.

Orders