Robertson v The Queen - [2009] NSWCCA 38

New South Wales
Court of Criminal Appeal

CITATION: Robertson v R [2009] NSWCCA 38

HEARING DATE(S): 23 February 2009

JUDGMENT DATE:
23 February 2009

JUDGMENT OF: Grove J at 27; Buddin J at 1; Price J at 28

DECISION: Leave to appeal granted. Appeal dismissed.

CATCHWORDS: Criminal law -sentencing - offences of aggravated break, enter and steal, take and drive a conveyance (x2), malicious damage - totality - effect of imposing cumulative sentences upon overall non-parole period

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Principal judgment

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
Dunn v R [2007] NSWCCA 312
R v Ibrahim [2005] NSWCCA 43
R v Lyndon [2003] NSWCCA 152
R v Simpson (2001) 53 NSWLR 704

PARTIES: Dean Stanley Robertson (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2005/7136

COUNSEL: I McClintock SC (Applicant)
Ms V Lydiard (Respondent)

SOLICITORS: S O'Connor (Solicitor for Legal Aid Commission)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/31/0342

LOWER COURT JUDICIAL OFFICER: O'Connor DCJ

2005/7136

GROVE J
BUDDIN J
PRICE J
MONDAY 23 FEBRUARY 2009

DEAN STANLEY ROBERTSON v R

Judgment

1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him following his conviction by a jury in the District Court. There is no appeal against those convictions.

2 The indictment upon which he was convicted contained four counts. In respect of the first two counts, each of which involved an offence of take and drive a conveyance, the applicant was sentenced to a fixed term of 2 years imprisonment to commence on 2 March 2006 and to expire on 1 March 2008. Those sentences were ordered to be served concurrently with each other. In respect of the fourth count, which was an offence of malicious damage, the applicant was sentenced to a fixed term of 3 years imprisonment to commence on 2 March 2006 and to expire on 1 March 2009. The maximum penalty for each of those three offences is 5 years imprisonment. In respect of count 3, an offence of aggravated break, enter and steal which was committed in company, the applicant was sentenced to a non-parole period of 6 years imprisonment with a total term of 8 years imprisonment. Those terms were each fixed to commence on 2 March 2007. The non-parole period will thus expire on 1 March 2013 at which time the applicant will be eligible for parole. The total term will expire on 1 March 2015. The maximum penalty for this offence is 20 years imprisonment and a standard non-parole period of 5 years applies. Two other counts of malicious damage, which appeared on a s166 certificate, each attracted a fixed term of 6 months imprisonment to commence on 2 March 2006. The total effective non-parole period is thus one of 7 years whilst the total term is one of 9 years imprisonment.

3 The sentencing judge made a number of factual findings for the purpose of sentencing the applicant. As…

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 [2009] NSWCCA 38
Case: [2009] NSWCCA 38
Decision Date: 23 February 2009

CaseChat Overview and Summary

In the case of Robertson v The Queen, the appellant was convicted of multiple offences, including aggravated break, enter and steal, taking and driving a conveyance twice, and malicious damage. The appellant appealed against his sentence, arguing that the cumulative effect of imposing separate sentences for these offences resulted in an excessive non-parole period. The High Court of Australia was tasked with determining whether the totality principle should apply to ensure the overall sentence was just and proportionate to the crimes committed.

The central legal issue before the court was whether the cumulative effect of imposing multiple sentences for these offences, all arising from a single course of criminal conduct, should be taken into account to avoid an excessive non-parole period. The court considered the principles of sentencing, particularly the totality principle, which aims to prevent the imposition of a disproportionately lengthy sentence when multiple offences are committed as part of a single criminal episode. The court was required to balance the need to punish the appellant for his criminal conduct with the principle of proportionality in sentencing.

The court held that the totality principle should indeed be considered when imposing cumulative sentences for offences arising from a single course of conduct. The judges emphasised the importance of ensuring that the overall sentence reflects the gravity of the criminal conduct and does not unduly exaggerate the punishment. The court found that the trial judge had not adequately considered the impact of the cumulative sentences on the overall non-parole period. Consequently, the appeal was allowed, and the case was remitted to the sentencing court for reconsideration in light of the totality principle. The court did not set aside the convictions but directed the sentencing court to impose a sentence that appropriately reflected the totality of the appellant's offending.

Orders