Rios v R

Case [2012] NSWCCA 8 13 February 2012

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Rios v Regina [2012] NSWCCA 8
Hearing dates: 6 December 2011
Decision date: 13 February 2012
Before: Bathurst CJ at 1
Simpson J at 2
Adamson J at 3
Decision:
1. Leave to appeal granted.
2. Appeal upheld.
3. The non-parole period fixed by Colefax DCJ in respect of the offence of stealing on 10 August 2009 be varied to fix a non-parole period of two years, three months and 17 days, which commenced on 14 July 2010 and will expire on 30 October 2012.
4. The sentences imposed by Colefax DCJ be otherwise confirmed.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - offences of stealing from person - where the non-parole period of a sentence exceeds 75 per cent of the total sentence - whether the sentencing judge failed to properly consider the issue of special circumstances in the context of partially accumulating sentences
Legislation Cited: Crimes Act 1900 (NSW) - s 94
Crimes (Sentencing Procedure) Act 1999 (NSW) - s 44
Cases Cited: - Barrett v R [2011] NSWCCA 213
- Dunn v R [2007] NSWCCA 312
- R v Nightingale [2005] NSWCCA 147
- Ruano v R [2011] NSWCCA 149
- Wakefield v R [2010] NSWCCA 12
Category: Principal judgment
Parties: Jose Lues Rios - Applicant
Regina - Respondent
Representation: T Gartelmann - Applicant
V Lydiard - Respondent
Arthur Aguirre - Applicant
S Kavanagh - Respondent

File Number(s): 2009/185877
Decision under appeal

Date of Decision:

2011-08-13 00:00:00

Before:

His Honour Judge Colefax SC

Judgment

BATHURST CJ : I agree with Adamson J

SIMPSON J : I agree with Adamson J.

ADAMSON J :

The proceedings

This is an application for leave to appeal the sentence imposed upon Jose Lues Rios, the applicant, by his Honour Judge Colefax SC in the District Court of New South Wales. The applicant was convicted of three offences of stealing from person, contrary to s 94 of the Crimes Act 1900 (NSW), for which the maximum penalty is 14 years.

The applicant was sentenced jointly with a co-offender Martha Isabel Ruano. The applicant and the co-offender pleaded guilty in the Local Court and were given a 25 per cent discount.

The applicant was sentenced to a total sentence of imprisonment for 4 years, 3 months and 16 days, consisting of an effective non-parole period of 3 years, 5 months and 12 days.

The co-offender was sentenced to a total term of imprisonment of 3 years 11 months with a non-parole period of 2 years, 10 months and 12 days.

The sentences for both were structured as follows, with each of the individual sentences being accumulated by 6 months.

Offence

Sentence

Offender

Rios

Ruano

Steal from person
(Jun 2008)

Term

13 Aug 2009 - 27 Mar 2012
2 years, 7 months, 15 days

13 Aug 2009 - 12 Nov 2011
2 years, 3 months

Non-parole period

13 Aug 2009 - 31 Jul 2011
1 year, 11 months,…

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 Rios v R

Details

AGLC: Rios v R [2012] NSWCCA 8
Case: [2012] NSWCCA 8
Decision Date: 13 February 2012

CaseChat Overview and Summary

In the matter of Rios versus the Crown, the appellant sought leave to appeal against the sentence imposed by the sentencing judge, who had convicted him of stealing from a person. The court was tasked with determining whether the sentencing judge had erred in failing to properly consider the issue of special circumstances in the context of partially accumulating sentences. The appellant argued that the non-parole period of the sentence exceeded 75 per cent of the total sentence, which he claimed was an inappropriate proportion. The court had to decide whether this constituted a miscarriage of justice or an error of law that warranted an appeal.

The central legal issue before the court was whether the sentencing judge had adequately considered the concept of special circumstances in imposing a partially accumulating sentence. The court examined the principles governing the imposition of sentences in such cases, particularly the need to balance the severity of the offence with the individual circumstances of the offender. It was necessary to determine if the judge had properly weighed the relevant factors and whether the sentence imposed was proportionate to the offending.

The court found that the sentencing judge had indeed failed to properly consider the issue of special circumstances in the context of partially accumulating sentences. The court emphasised the importance of ensuring that the non-parole period does not exceed 75 per cent of the total sentence, as this was a matter of significant legal importance. The court concluded that the appellant's argument had merit and that the sentence imposed was disproportionate, warranting a grant of leave to appeal. Consequently, the court granted the appellant leave to appeal against the sentence, finding that the error of law justified the appeal.

Orders