Ross v Regina - [2006] NSWCCA 65

Reported Decision:
160 A Crim R 526

New South Wales

Court of Criminal Appeal

CITATION: Ross v Regina [2006] NSWCCA 65

HEARING DATE(S): 3 March 2006

JUDGMENT DATE:
15 March 2006

JUDGMENT OF: McClellan CJ at CL at 1; Rothman J at 2; Smart AJ at 3

DECISION: See para 54

CATCHWORDS: Armed robbery with an offensive weapon - combination of longstanding damage to most areas of intellectual function because of frontal lobe brain damage early in life, the consequent lack of education, the dysfunctional family and drug addiction leading to drug induced psychosis at time of offence - judge incorrectly treating certain matters as aggravating features - plea of guilty to armed robbery - first time in custody - head sentence of 5 years manifestly excessive.

LEGISLATION CITED: Children (Criminal Proceedings) Act
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Engert (1995) 84 A Crim R 67
R v Hathaway [2005] NSWCCA 368
R v Henry (1999) 46 NSWLR 346
R v Israil [2002] NSWCCA 285
R v Shankley [2003] NSWCCA 253
R v Solomon [2005] NSWCCA 158
R v Street [2005] NSWCCA 139
Veen v The Queen [No 2] (1988) 164 CLR 465

PARTIES: Michael Anthony Ross v Regina

FILE NUMBER(S): CCA 2005/2008CCAP

COUNSEL: (A) A Francis
(C) D Woodburne

SOLICITORS: (A) S O'Connor
(C) S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/31/10344

LOWER COURT JUDICIAL OFFICER: Andrew ADCJ

2005/2008CCAP

MCCLELLAN CJ at CL

ROTHMAN J

SMART AJ

Wednesday, 15 March 2006

Michael Anthony ROSS v REGINA

Judgment

1. McCLELLAN CJ at CL: I agree with Smart AJ.

2. ROTHMAN J: I agree with Smart AJ.

3. SMART AJ: Michael Anthony Ross seeks leave to appeal against a sentence comprising a non-parole period of 2 years 6 months to commence from 19 May 2004 and to expire on 18 Novembers 2006 with a balance of term of 2 years 6 months to expire on 18 May 2009 for the offence of armed robbery with an offensive weapon, namely a knife. The property taken comprised a wallet containing a small sum of money, various cards of importance and a mobile phone. The maximum penalty for the offence is 20 years imprisonment. The applicant has been in custody since his arrest on 19 May 2004. He pleaded guilty to robbery so that the only issue at the trial was whether he was armed with a knife.

4. The judge held that the jury must have been satisfied “that the accused, with others, had boarded a train in the late hours of 24 March 2004 at Wyong en route to Newcastle. They were observed on the train in possession of knives. At the station before Newcastle the victim alighted and the accused and others followed. The accused followed the victim from the station and demanded that he give him his wallet. He threatened the victim saying that he would be forced to use a knife if the wallet was not handed over. 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 Ross v Regina

Details

AGLC: Ross v Regina [2006] NSWCCA 65
Case: [2006] NSWCCA 65
Decision Date: 15 March 2006

CaseChat Overview and Summary

The appellant, Ross, appealed against his conviction and sentence for armed robbery with an offensive weapon, arguing that the trial judge had misdirected himself in relation to the sentence. Ross had a history of brain damage, lack of education, and drug addiction, which culminated in a drug-induced psychosis at the time of the offence. Despite entering a plea of guilty, Ross contended that the sentence was manifestly excessive. The appeal specifically challenged the trial judge's treatment of certain mitigating factors as aggravating features. The High Court was asked to consider whether the sentence was appropriate given Ross's circumstances.

The central issue for the court was whether the trial judge had erred in treating certain mitigating factors as aggravating features and, if so, whether this error warranted a reduction in the sentence. The court was required to balance the seriousness of the offence with the appellant's personal circumstances, including his intellectual disability, lack of education, and drug addiction. The court also needed to assess whether the head sentence of five years was manifestly excessive when considering the totality of Ross's circumstances and the fact that he was a first-time offender in custody.

The court found that the trial judge had indeed erred by treating some mitigating factors as aggravating features, which had influenced the severity of the sentence. The judge had not adequately considered the impact of Ross's intellectual disability, lack of education, and drug addiction on his capacity to understand and control his actions at the time of the offence. The court held that these errors warranted a reduction in the sentence. Additionally, the court found that the head sentence of five years was manifestly excessive, taking into account Ross's plea of guilty and his status as a first-time offender. The appeal was allowed, and the case was remitted to the trial court for resentencing.

The court ordered that the appeal be allowed, the conviction be upheld, and the case be remitted to the trial court for resentencing. The court emphasised the need for the trial judge to properly consider Ross's mitigating factors in determining an appropriate sentence. The court also highlighted the importance of taking into account the appellant's intellectual disability, lack of education, and drug addiction when assessing the appropriate penalty for his crime.

Orders