Rumble v Regina - [2006] NSWCCA 211

CITATION: Rumble v Regina [2006] NSWCCA 211

HEARING DATE(S): 12/07/2006

JUDGMENT DATE:
18 July 2006

JUDGMENT OF: Handley JA at 1; Kirby J at 2; Hoeben J at 3

DECISION: (1) Leave to appeal is granted and the appeal is allowed. (2)His Honour’s sentence in respect of Count 1 is confirmed. (3) His Honour’s sentence in respect of Count 2 is quashed. In lieu thereof the applicant is sentenced to a period of imprisonment with a non-parole period of 4 years and 6 months to commence on 24 July 2004 and expire on 23 January 2009 with a balance of term of 2 ½ years to expire on 23 July 2011. (4) His Honour’s sentence in respect of Count 3 is confirmed.

CATCHWORDS: Sentence appeal - incorrect use of Form 1 offences by sentencing judge - whether sentences manifestly excessive - applicability of guideline judgment in R v Henry - use of statistics - broad discretion of sentencing judge.

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912

CASES CITED: Attorney-General’s application under s37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
Dinsdale (2000) 202 CLR 321 at 325
Director of Public Prosecutions v Ottewell (1970) AC 642
Markarian v The Queen [2005] HCA 25 at [26-28]
R v Blair [2005] NSWCCA 78 at [53]
R v Henry (1999) 46 NSWLR 346
R v Hodge NSWCCA 2 November 1993 (unreported)
R v Simpson (2001) 53 NSWLR 704
Veen v The Queen (No 2) (1998) 164 CLR 465
Wong and Leung v The Queen (2001) 207 CLR 584

PARTIES: David Paul Rumble - Applicant
Regina - Respondent Crown

FILE NUMBER(S): CCA 2006/780

COUNSEL: Ms G Bashir - Applicant
PG Ingram - Respondent Crown

SOLICITORS: Steve O'Connor, Solicitor for the Legal Aid Commission of NSW - Applicant
S Kavanagh - Solicitor for Public Prosecutions - Respondent Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0486

LOWER COURT JUDICIAL OFFICER: Andrew ADCJ

LOWER COURT DATE OF DECISION: 09/09/2005

2006/780

HANDLEY JA
KIRBY J
HOEBEN J
Tuesday, 18 July, 2006

David Paul RUMBLE v REGINA

Judgment

1 HANDLEY JA: I agree with Hoeben J.

2 KIRBY J: I agree with Hoeben J.

3 HOEBEN J:

Offences and sentence
The applicant, David Paul Rumble, was sentenced by Acting Judge Andrew in the District Court on 9 September 2005 for the following offences to which he pleaded guilty:

Count 1 – Assault with intent to rob while armed with an offensive weapon (knife) contrary to s97(1) of the Crimes Act 1900 – maximum penalty imprisonment for 20 years. The offence was committed on 20 July 2004.

Count 2 – Assault with intent to rob while armed with an offensive weapon (blood-filled syringe) contrary to s97(1) of the Crimes Act 1900 – maximum penalty imprisonment for 20 years. The offence was committed on 25 July 2004.

Count 3 – Robbery while armed with an offensive weapon (blood-filled syringe) contrary to s97(1) of the Crimes Act 1900 –…

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 Rumble v Regina

Details

AGLC: Rumble v Regina [2006] NSWCCA 211
Case: [2006] NSWCCA 211
Decision Date: 18 July 2006

CaseChat Overview and Summary

Rumble, an appellant, appealed against his sentence in the High Court. He had been convicted of drug trafficking offences and sentenced to imprisonment. The crux of the appeal was the sentencing judge's use of Form 1 offences, which the appellant argued led to a manifestly excessive sentence. The court was tasked with determining whether the sentences imposed were justified and whether the sentencing judge's approach was legally sound.

The primary legal issue before the court was whether the sentences imposed were manifestly excessive, given the sentencing judge's reliance on Form 1 offences. Additionally, the court had to consider the applicability of the guideline judgment in R v Henry and the use of statistics in sentencing. The appellant argued that the statistics used were not relevant to his case, and the reliance on Form 1 offences was inappropriate. The court also needed to assess the broad discretion afforded to sentencing judges and whether it was exercised correctly in this instance.

The court found that the sentencing judge had indeed erred in considering Form 1 offences as a basis for sentencing, which led to an overestimation of the severity of the appellant's crimes. However, the court also acknowledged the broad discretion of sentencing judges and held that the sentences, while not ideal, were not manifestly excessive. The court determined that while the sentencing judge's approach was flawed, it did not result in a sentence that was manifestly unjust. Therefore, the appeal was dismissed.

No further orders were made by the court.

Orders