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Sharpe v R

Sharpe v R

Case [2006] NSWCCA 255 23 August 2006

Appeal

Aggravated & Exemplary Damages

Sentencing

Breach of Contract

Misrepresentation

Unconscionable Conduct

Criminal Law

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CITATION: Sharpe v R [2006] NSWCCA 255

HEARING DATE(S): 9 June 2006

JUDGMENT DATE:
23 August 2006

JUDGMENT OF: McClellan CJ at CL at 1; Johnson J at 2; Latham J at 76

DECISION: 1. Appeal against conviction dismissed; 2. Leave to appeal against sentence allowed, but appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - aggravated use of offensive weapon to prevent lawful apprehension contrary to s.33B(2) Crimes Act 1900 - whether verdict cannot be supported having regard to evidence - appeal against conviction dismissed - application for leave to appeal against sentence - whether use of offensive weapon erroneously taken into account as aggravating factor under s.21A(2)(c) Crimes (Sentencing Procedure) Act 1999 - whether prior criminal record erroneously taken into account as aggravating factor under s.21A(2)(d) - whether there was failure to make due allowance for assistance to authorities - whether there was failure to take account of extra curial punishment (gun shot wound to the leg sustained during commission of offence) - significance of general deterrence in sentencing for s.33B offence - sentence appeal dismissed

LEGISLATION CITED: Crimes Act 1900
Criminal Appeal Act 1912
Crimes (Sentencing Procedure) Act 1999

CASES CITED: R v Merritt and Roso (1985) 19 A Crim R 360
R v Kyriakou (1987) 29 A Crim R 50
R v O’Donoghue (1988) 34 A Crim R 397
M v The Queen (1994) 181 CLR 487
MFA v The Queen (2002) 213 CLR 606
Seymour v R [2006] NSWCCA 206
R v Chahine [2006] NSWCCA 99
Pearce v The Queen (1998) 194 CLR 610
R v McNaughton [2006] NSWCCA 242
Veen v The Queen (No. 2) (1988) 164 CLR 465
R v Allpass (1993) 72 A Crim R 561
R v Daetz and Wilson (2003) 139 A Crim R 398
Sharwood v R [2006] NSWCCA 157
R v Cunningham [2006] NSWCCA 176
R v Webb [2004] NSWCCA 330
R v Azar [2004] NSWSC 797
R v Qutami (2001) 127A Crim R 369
R v Palu (2002) 134 A Crim R 174
R v Hamilton (1993) 66 A Crim R 575
R v Barton (2001) 121 A Crim R 185
R v Perez (NSWCCA, Gleeson CJ, Kirby P and Campbell J, 11 December 1991, BC9101351)

PARTIES: Peter John Sharpe (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/405

COUNSEL: Mr J Stratton SC (Appellant)
Mr P Barrett (Crown)

SOLICITORS: Nyman Gibson Stewart (Appellant)
SC Kavanagh (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1175

LOWER COURT JUDICIAL OFFICER: Morgan DCJ

LOWER COURT DATE OF DECISION: 29 April 2004 (conviction)
18 November 2004 (sentence)

LOWER COURT MEDIUM NEUTRAL CITATION: N/A

2006/405

McCLELLAN CJ at CL
JOHNSON J
LATHAM J
23 August 2006

PETER JOHN SHARPE v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Johnson J.

2 JOHNSON J: The Appellant, Peter John Sharpe, was convicted in the Sydney District Court after trial before Morgan DCJ and a jury in respect of two offences:

(a) aggravated break, enter and steal (in company):…

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 Sharpe v R

Details

AGLC: Sharpe v R [2006] NSWCCA 255
Case: [2006] NSWCCA 255
Decision Date: 23 August 2006

CaseChat Overview and Summary

In the matter of Sharpe v R, the appellant was convicted of aggravated use of an offensive weapon to prevent lawful apprehension, contrary to section 33B(2) of the Crimes Act 1900. The appeal was against both the conviction and the sentence imposed. The Supreme Court of Appeal was tasked with reviewing the sufficiency of the evidence supporting the conviction, the appropriateness of the sentence, and the application for leave to appeal against the sentence. The court was also required to determine whether certain factors were erroneously considered as aggravating elements in the sentencing process, and whether there was a failure to adequately consider mitigating factors such as the appellant's assistance to authorities and the extra-curial punishment sustained.

The court examined the evidence presented and concluded that the verdict was supported by the evidence. It found no basis to overturn the conviction. Regarding the sentence, the court scrutinised the sentencing considerations, focusing on whether the use of an offensive weapon and the appellant's prior criminal record were properly taken into account as aggravating factors. The court also assessed whether there was a failure to give sufficient weight to the appellant's assistance to the authorities and the extra-curial punishment he received. The court determined that the sentence was appropriate, considering the need for general deterrence in relation to offences involving the use of offensive weapons.

The court dismissed the appeal against the conviction, affirming the trial court's decision. As for the sentence, the court also dismissed the appeal, finding that the trial judge had appropriately balanced the aggravating and mitigating factors. The court underscored the importance of general deterrence in sentencing for offences under section 33B of the Crimes Act 1900. Therefore, the sentence imposed by the trial court was upheld, and the application for leave to appeal against the sentence was denied.

Orders