Roberts v The Queen - [2012] NSWCCA 232

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Roberts v R [2012] NSWCCA 232
Hearing dates: 15 February 2012
Decision date: 15 February 2012
Before: McClellan CJ at CL at [1]
Hidden J at [26]
Rothman J at [27]
Decision:
Leave to appeal refused.

Catchwords: CRIMINAL LAW - appeal - sentence - application for leave to appeal - whether sentencing judge erred in finding that offence was "at least in the middle of any scale" - where offence involved remaining on premises with weapon with intent to intimidate victim - finding of sentencing judge in relation to objective seriousness was open - whether sentence was manifestly excessive - where offence committed in breach of ADVO - where there was history of domestic violence perpetrated against victim - where applicant has serious criminal history - sentence not manifestly excessive - leave to appeal refused.
Legislation Cited: Crimes Act 1900
Summary Offences Act 1988
Crimes (Domestic and Personal Violence Act) 2007
Cases Cited: Ayoub and El Mazri v R (2010) NSWCCA 196
R v Hamid (2006) NSWCCA 302
The Queen v De Simoni (1981) 147 CLR 303
Category: Principal judgment
Parties: Colin Ronald Roberts (Applicant)
Crown
Representation: D O'Neil (Applicant)
N J Gouda (Crown)
Legal Aid of NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2010/65265
Decision under appeal

Date of Decision:

2010-12-08 00:00:00

Before:

McLoughlin DCJ

Judgment

McCLELLAN CJ at CL: The applicant pleaded guilty to one count of remaining in a building with intent to commit an indictable offence, namely intimidation, contrary to s 114(1)(d) of the Crimes Act 1900. The offence carries a maximum penalty of 7 years imprisonment.

When sentenced the applicant asked that the following matters be included on a Form 1:

i.intimated police officer in execution of duty (s 61 Crimes Act 1900);

ii.have custody of an offensive implement in a public place (s 11B Summary Offences Act 1988);

iiicommon assault (s 61 Crimes Act 1900);

ivcontravene apprehended domestic violence order (s 14(1) Crimes (Domestic and Personal Violence Act) 2007).

The applicant was sentence to a non-parole period of 2 years and 3 months with a balance of term of 9 months. He seeks leave to appeal against his sentence and raises 2 grounds of appeal.

Ground 1:His Honour erred in finding that the offence was at least in the middle of any scale.

Ground 2:The starting point of 4 years imprisonment was manifestly excessive.

The sentencing judge was provided with an agreed statement of facts. It indicates that the victim, Leanne Jones, and the applicant had been in an on-again, off-again defacto relationship for the past 23 years. Domestic violence against the victim featured in this relationship and the applicant has been convicted of a number of personal violence offences against the victim. As at 14 March 2010 the applicant was subject to an Apprehended Domestic Violence Order (ADVO) imposed for the victim's protection with the following conditions:

1(a)Not to assault, molest, harass, threaten or otherwise interfere with the…

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 The Queen

Details

AGLC: Roberts v The Queen [2012] NSWCCA 232
Case: [2012] NSWCCA 232
Decision Date: 15 February 2012

CaseChat Overview and Summary

The case of Roberts v The Queen involved an appeal against a sentence imposed by a lower court. The appellant, Roberts, was convicted of remaining on premises with a weapon with the intent to intimidate the victim. The appeal focused on whether the sentencing judge erred in determining the objective seriousness of the offence and whether the sentence was manifestly excessive. The High Court of Australia was tasked with reviewing the appeal and deciding on the application for leave to appeal.

The central legal issue before the court was whether the sentencing judge had erred in categorising the offence as being "at least in the middle of any scale" of seriousness. The court also needed to determine if the sentence imposed was manifestly excessive, considering the breach of an Apprehended Domestic Violence Order (ADVO), the history of domestic violence perpetrated against the victim, and the appellant's significant criminal history. The court was required to assess the findings of the sentencing judge and weigh them against the applicable legal standards.

In assessing the appeal, the court found that the sentencing judge's determination regarding the objective seriousness of the offence was open to reasonable minds. The court noted that the offence involved a breach of an ADVO, a history of domestic violence, and the appellant's extensive criminal history, all of which contributed to the seriousness of the offence. The court concluded that the sentence imposed was not manifestly excessive, taking into account all relevant factors. Consequently, the application for leave to appeal was refused.

The final orders of the court were to dismiss the appeal and refuse the application for leave to appeal. The court upheld the original sentence imposed by the lower court, finding it to be appropriate in the circumstances of the case.

Orders