Ruano v R - [2011] NSWCCA 149

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Martha Isabel RUANO v R; Martha RUANO v R [2011] NSWCCA 149
Hearing dates: 15 June 2011
Decision date: 30 June 2011
Before: McClellan CJ at CL at [1];
Hidden J at [2];
Grove AJ at [3]
Decision:
1. Application for leave to appeal against sentence granted and appeal allowed in part.
2. Sentences and orders in the District Court for offences on 5 June 2008 and 28 May 2009 confirmed.
3. Sentence and orders for offence on 10 August 2009 quashed and in lieu thereof the applicant sentenced to imprisonment consisting of a non parole period of 1 year 8 months commencing on 14 July 2010 and expiring on 13 March 2012 with a balance of term of 1 year 4 months commencing on 14 March 2012.
4. The earliest date of eligibility for release to parole specified as 13 March 2012.

Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - stealing from person (3) - where sentencing judge took into account that offences could have been dealt with summarily - structure of sentences - finding of special circumstances not reflected in aggregate sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Doan (2000) 50 NSWLR 115
Category: Principal judgment
Parties: Martha Isabel RUANO (Applicant)
Regina (Crown/Respondent)
Representation: Counsel
Mr M Johnston (Applicant)
Ms V Lydiard (Crown/Respondent)
Solicitors
Brenda Duchen Solicitor, Edgecliff (Applicant)
Solicitor for Public Prosecutions (Crown/Respondent)

File Number(s): 2009/185321-006; 2009/276360-003
Decision under appeal

Citation:

2009/185321 - R v Martha Isabel RUANO; 2009/276360 - R v Martha Isabel RUANO

Date of Decision:

2010-08-13 00:00:00

Before:

Colefax SC DCJ

File Number(s):

2009/185321, 2009/276360

Judgment

McCLELLAN CJ at CL: I agree with Grove AJ.

HIDDEN J: I agree with Grove AJ.

GROVE AJ: This is an application for leave to appeal against severity of sentence imposed by Colefax DCJ at Sydney District Court.

The applicant had been committed for sentence following pleas of guilty in the Local Court to 3 charges of stealing from a person contrary to s 94 of the Crimes Act 1900. That provision prescribes a maximum available penalty for a single offence of 14 years imprisonment. Without detailing orders for commencement and expiry, his Honour sentenced the applicant for the first offence to imprisonment for 2 years 3 months with a non parole period of 1 year 5 months 17 days; for the second offence to imprisonment for 1 year 10 months with a non parole period of 1 year 2 months 18 days and for the third offence to imprisonment for 3 years with a non parole period of 1 year 11 months 12 days.

It was common ground between counsel for the applicant and for the Crown that, allowing for orders of partial cumulation, the overall effective sentence was 3 years 11 months with a non parole period of 2 years 10 months 12 days.

The applicant appeared for sentence with a co-offender…

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 Ruano v R

Details

AGLC: Ruano v R [2011] NSWCCA 149
Case: [2011] NSWCCA 149
Decision Date: 30 June 2011

CaseChat Overview and Summary

The case involved the appellant, Ruano, who was sentenced for stealing from a person. The matter was heard in the High Court of Australia, which was asked to grant leave to appeal against the sentence imposed by the sentencing judge. The appeal centred on the contention that the sentencing judge had erred in taking into account that the offences could have been dealt with summarily and in the structure of the sentences imposed, as well as in not reflecting a finding of special circumstances in the aggregate sentence.

The central legal issues revolved around the principles of sentencing and the proper application of the summary offence provisions. The appellant argued that the sentencing judge had misapplied the law by considering that the offences could have been dealt with summarily and by imposing a structure of sentences that did not adequately reflect the special circumstances found by the judge. The appellant also contended that the aggregate sentence did not properly account for the special circumstances.

The court considered the sentencing principles and the role of the sentencing judge in determining the appropriate sentence. The court found that the sentencing judge had correctly taken into account the possibility that the offences could have been dealt with summarily, as this was a relevant factor in determining the appropriate sentence. However, the court also found that the sentencing judge had not adequately considered the special circumstances in setting the aggregate sentence. The court concluded that the sentencing judge had erred in not reflecting the special circumstances in the aggregate sentence and granted leave to appeal.

The final orders of the court were to grant leave to appeal against the sentence imposed by the sentencing judge. The court found that the appellant had demonstrated that the sentencing judge had erred in not reflecting the special circumstances in the aggregate sentence and that this error was significant enough to warrant a grant of leave to appeal. The case will now proceed to the Court of Appeal for a review of the sentence.

Orders