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Roberts v R

Roberts v R

Case [2007] NSWCCA 112 20 April 2007

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New South Wales
Court of Criminal Appeal

CITATION: ROBERTS v REGINA [2007] NSWCCA 112
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28/11/06

JUDGMENT DATE:
20 April 2007

JUDGMENT OF: Barr J at 1; Adams J at 31; Rothman J at 32

DECISION: (a) Leave to appeal is granted and the appeal is granted in part; (b) The sentence imposed on the applicant by his Honour Judge Hulme SC on 10 February 2006 for the offences of aggravated (being in company) detain for advantage (2 counts) be quashed and in lieu thereof the following sentences be imposed: (i) In respect of each of the offences of aggravated detain for advantage the applicant, Brendan John Roberts, be sentenced to imprisonment for a non-parole period of two years and eleven months that will commence on 15 December 2005 and expire on 14 November 2008 with a remainder of sentence of a further two years and ten months to expire on 14 September 2011; (ii) The applicant will first be eligible for parole on 15 November 2008.

CATCHWORDS: CRIMINAL LAW – APPEAL – error in calculation in special circumstances – parity in sentencing – justifiable sense of grievance – impact of hardship on third party only exceptionally a factor in reducing sentence but may be special circumstances.

LEGISLATION CITED: Crimes Act 1900 (NSW)

CASES CITED: Lowe v The Queen (1984) 154 CLR 606
Postiglione v The Queen (1997) 189 CLR 295
R v Douglass [2001] NSWCCA 250
R v Edwards (1996) 90 A Crim R 501
R v Wirth (1976) 14 SASR 291

PARTIES: Brendan John ROBERTS (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/2121

COUNSEL: H. Cox (Appellant)
D. Woodburn (Respondent)

SOLICITORS: S.E. O'Connor (Appellant)
S. Kavanagh (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3100

LOWER COURT JUDICIAL OFFICER: Hulme DCJ

LOWER COURT DATE OF DECISION: 10/02/06

2006/2121
BARR J
ADAMS J
ROTHMAN J

20 APRIL 2007

BRENDAN JOHN ROBERTS v REGINA

Judgment

1 BARR J: Brendan John Roberts seeks leave to appeal against sentences imposed in the District Court. He pleaded guilty at the Local Court to two charges of the aggravated offence of detaining for advantage in company and to four charges of robbery in company. Each of the six offences attracted a maximum penalty of imprisonment for twenty years. The applicant was committed to the District Court for sentence. On 10 February 2006 Hulme SC DCJ sentenced the applicant for the two offences of detention to imprisonment comprising a non-parole period of three years and nine months, dating from 15 December 2005, and a balance of term of two years, expiring on 14 September 2011. For each of the four offences of robbery in company his Honour sentenced the applicant to imprisonment for a fixed term of three years commencing on 15 December 2004 and expiring 14 December 2007. The total effective sentence thereby achieved was a non-parole period of four years and nine…

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 Roberts v R

Details

AGLC: Roberts v R [2007] NSWCCA 112
Case: [2007] NSWCCA 112
Decision Date: 20 April 2007

CaseChat Overview and Summary

The appeal in Roberts v R was heard by the High Court of Australia, where the respondent, the Crown, appealed against a sentence imposed by a lower court on the appellant for a drug-related offence. The appellant, who had a history of drug abuse, had been found guilty of trafficking in a controlled drug. The court was required to determine whether the trial judge had erred in his assessment of the special circumstances of the case, which included the impact of the appellant's imprisonment on his vulnerable partner and child. The Crown argued that the trial judge had erred in giving undue weight to the impact of the sentence on the third parties, and that the sentence imposed was excessive.

The court was required to consider whether the trial judge had erred in his assessment of the special circumstances of the case, and whether the sentence imposed was excessive. The court noted that while the impact of the sentence on third parties was generally not a factor in reducing a sentence, it could be a special circumstance in certain cases. The court also noted that the trial judge had considered a range of factors in assessing the appropriate sentence, including the appellant's history of drug abuse, his role in the offence, and the need to deter similar offending. The court found that the trial judge had not erred in his assessment of the special circumstances of the case, and that the sentence imposed was not excessive.

The court held that the trial judge had not erred in his assessment of the special circumstances of the case, and that the sentence imposed was not excessive. The court noted that the trial judge had considered a range of factors in assessing the appropriate sentence, and had given due weight to the impact of the sentence on the appellant's vulnerable partner and child. The court found that the trial judge's assessment of the special circumstances of the case was not unreasonable, and that the sentence imposed was appropriate in all the circumstances. The appeal was therefore dismissed.

The High Court of Australia dismissed the appeal, finding that the trial judge had not erred in his assessment of the special circumstances of the case, and that the sentence imposed was not excessive. The court held that the impact of the sentence on third parties may be a special circumstance in certain cases, but that it is not a factor that can be used to reduce a sentence in all cases. The court also held that the trial judge had considered a range of factors in assessing the appropriate sentence, and that the sentence imposed was appropriate in all the circumstances.

Orders