Skondin v The Queen - [2006] NSWCCA 59

CITATION: Skondin v R [2006] NSWCCA 59

HEARING DATE(S): 6 March 2006

JUDGMENT DATE:
16 March 2006

JUDGMENT OF: Spigelman CJ at 1; Simpson J at 2; Adams J at 21

DECISION: (i) leave to appeal granted; (ii) appeal allowed, to the extent only that the sentence imposed commence on 17 October 2002, the non-parole period to expire on 16 October 2005, and the total sentence to expire on 16 October 2008.

CATCHWORDS: application for leave to appeal against sentence - armed robbery - plea of guilty - malicious wounding - conviction following trial by jury - sentence in respect of armed robbery partially cumulative upon sentence in respect of malicious wounding - conviction in respect of malicious wounding charge quashed by Court of Criminal Appeal - verdict of not guilty in respect of charge of malicious wounding entered - sentence in respect of charge of malicious wounding quashed - adjustment of commencement date of sentence imposed in respect of armed robbery - armed robbery committed whilst subject to parole order an aggravating feature - parole never revoked - revocation of parole function of Parole Board - custody referable only to armed robbery and malicious wounding charges - principle of totality - sentencing discretion of first instance judge

LEGISLATION CITED: Crimes (Administration of Sentences) Act 1999
Crimes (Sentencing Procedure) Act 1999 s59

CASES CITED: Callaghan v R [2006] NSWCCA 58

PARTIES: Mark Shane Skondin - Applicant
Crown - Respondent

FILE NUMBER(S): CCA 2006/340

COUNSEL: M Ramage QC - Applicant
DC Frearson SC - Respondent

SOLICITORS: Jeffreys & Associates - Applicant
S Kavanagh - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0452

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

2006/340

SPIGELMAN CJ
SIMPSON J
ADAMS J
Thursday 16 March 2006

Mark Shane SKONDIN v REGINA

Judgment

1 SPIGELMAN CJ: I agree with Simpson J.

2 SIMPSON J: The applicant seeks leave to appeal in respect of a sentence imposed upon him in the District Court on 12 December 2003 following his plea of guilty to a charge of armed robbery. Dodd DCJ imposed a sentence of imprisonment for six years, commencing on 17 October 2003, with a non-parole period of three years, expiring on 16 October 2006.

3 The application raises a very narrow issue which makes it unnecessary to go into details of the offence.

4 At the same time as he imposed this sentence, Dodd DCJ sentenced the applicant in respect of an offence of malicious wounding, of which the applicant was convicted following trial by jury. For that offence his Honour imposed a sentence of a fixed term of imprisonment for three years, commencing on 17 October 2002. It was by reason of that sentence that the judge selected the commencement date that he did for the sentence imposed for the armed robbery. The armed robbery sentence was made partially cumulative, by one year, upon the earlier imposed sentence.

5 On 8 December 2005 this Court quashed the conviction on the malicious wounding charge…

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 Skondin v The Queen

Details

AGLC: Skondin v The Queen [2006] NSWCCA 59
Case: [2006] NSWCCA 59
Decision Date: 16 March 2006

CaseChat Overview and Summary

The applicant, Skondin, sought leave to appeal against his sentence imposed following a guilty plea to armed robbery and a conviction following trial by jury for malicious wounding. Skondin's sentence for armed robbery was partially cumulative upon his sentence for malicious wounding. However, the Court of Criminal Appeal quashed his conviction for the malicious wounding charge and entered a verdict of not guilty on that charge, subsequently quashing the sentence for malicious wounding. Skondin applied for the commencement date of his sentence for armed robbery to be adjusted to the date of his original sentence for malicious wounding.

The court was required to determine whether the principle of totality and the sentencing discretion of the first instance judge warranted an adjustment to the commencement date of Skondin's sentence for armed robbery. The court also needed to consider whether the armed robbery was committed while Skondin was subject to a parole order, which was an aggravating feature, and whether the parole had been revoked.

The court concluded that the principle of totality and the sentencing discretion of the first instance judge did not support adjusting the commencement date of Skondin's sentence for armed robbery. The court held that the revocation of parole was a function of the Parole Board and not the court. Furthermore, the court found that the custody referable to the armed robbery and malicious wounding charges only applied to those charges and not any other potential charges. The court denied Skondin's application for leave to appeal against his sentence.

The court refused Skondin's application for leave to appeal against his sentence and upheld the sentence imposed for armed robbery.

Orders