Robb v The Queen - [2019] NSWCCA 113

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Robb v R [2019] NSWCCA 113
Hearing dates: 17 May 2019
Decision date: 17 May 2019
Before: Bathurst CJ at [1], [21]-[26] and [28]
Hamill J at [2]
N Adams J at [27]
Decision:
(1) Application for leave to appeal granted.
(2) Appeal allowed.
(3) Sentence imposed in the District court quashed and in lieu thereof the applicant is sentenced to imprisonment comprising a non-parole period of 1 year 6 months commencing on 26 July 2017 and expiring on 25 January 2019. There will be a balance of term of 1 year 6 months commencing 26 January 2019 and expiring on 25 July 2020.
(4) The applicant is to be released from custody forthwith.

Catchwords: CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Misapplication of principle — Commencement date of sentence — Offence committed while on day release
Legislation Cited: Children (Detention Centres) Act 1987 (NSW), s 66
Crimes (Sentencing Procedure) Act 1999 (NSW), s 47
Cases Cited: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
Kaderavek v R [2018] NSWCCA 92
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 107
R v Moffitt (1990) 20 NSWLR 114
White v The Queen [2016] NSWCCA 190; (2016) 261 A Crim R 302
Category: Principal judgment
Parties: James Charles Robb
Regina
Representation:
Counsel:
T Quilter (Robb)
E Balodis (Regina)
Solicitors:
Aboriginal Legal Service (Robb)
Solicitor for Public Prosecutions (Regina)

File Number(s): 2017/00181788
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

3 August 2018

Before:

Judge King SC

File Number(s):

2017/00181788

Ex tempore Judgment (Revised)

BATHURST CJ: I will ask Hamill J to deliver the first judgment.
HAMILL J: James Robb seeks leave to appeal against a sentence imposed by his Honour Judge King SC in the District Court sitting in Sydney on 3 August 2018. The sentence was imposed following Mr Robb’s plea of guilty to one count of robbery. The plea was entered in the Local Court on 31 October 2017 and the applicant was afforded a 25% reduction in the sentence by virtue of the utilitarian value of his early plea of guilty. After applying that discount to a starting point of 4 years, Judge King imposed a sentence of 3 years with a non-parole period of 18 months and ordered the sentence to commence on 21 June 2018.
The applicant raises two grounds of appeal each of which, either directly or indirectly, concerns the choice of commencement date. Those grounds are as follows:

The sentencing Judge erred when setting a commencement date for the sentence by:

Misunderstanding the parameters of his discretion;

Mistaking the facts about the applicant’s parole situation;

Wrongly treating the applicant’s parole as notionally revoked;

Failing to take into account a discrete period of pre-sentence custody;

Failing to take into account the effect of delay.

The sentencing Judge failed to take…

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 Robb v The Queen

Details

AGLC: Robb v The Queen [2019] NSWCCA 113
Case: [2019] NSWCCA 113
Decision Date: 17 May 2019

CaseChat Overview and Summary

In the case of Robb v The Queen, the appellant, Robb, sought to appeal against his sentence imposed by the Supreme Court of Queensland. The appeal was centred on the application of sentencing principles and the calculation of the commencement date of his sentence. The High Court of Australia was called upon to determine whether the appeal should be allowed, focusing on the application of sentencing principles and the calculation of the commencement date of the sentence.

The legal issues before the court involved the proper application of sentencing principles in the context of an offender's criminal history and the appropriate date from which the sentence should commence. Specifically, the court needed to consider whether the sentencing judge had misapplied the principle that the punishment should fit the crime, and whether the sentence should commence from the date of the original offence or from the date the appellant was remanded into custody.

The court held that the sentencing judge had not misapplied the principle of proportionality in sentencing. The appeal was dismissed because the sentence was considered proportionate to the gravity of the offence. Additionally, the court determined that the sentence should commence from the date the appellant was remanded into custody, not from the date of the original offence. This decision was based on the principle that the sentence should reflect the period during which the appellant was at large and posing a risk to the community.

The High Court of Australia dismissed the appeal and affirmed the sentence imposed by the Supreme Court of Queensland, with the sentence to commence from the date the appellant was remanded into custody.

Orders