Stuart Gordon Apps v The Queen - [2006] ACTCA 16

STUART GORDON APPS v THE QUEEN
[2006] ACTCA 16 (1 September 2006)

CRIMINAL LAW – offences against the person – robbery – aggravating factors – offence undertaken in company – whether common purpose for another offence sufficient

CRIMINAL LAW – appeal against sentence – guilty plea to aggravated robbery – tendered under mistake of law

CRIMINAL LAW – appeal against sentence – cooperation with investigating authorities – discount in head sentence only – none to non-parole period – whether discount for future cooperation correctly prescribed

Criminal Code 2002 (ACT), s 309, s 310

Crimes Act 1900 (ACT), s 20, s 342, s 358

R v Farrar (1983) 78 FLR 10

R v Haigh (unreported, CCA (NSW), 4 August 1995)

R v Button and Griffen (2002) 129 A Crim R 242

Taufahema v The Queen [2006] NSWCCA 152

R v Perrier (No 2) (1991) 1 VR 717

R v Waga (No 2) [2005] NSWCCA 33

R v Barakat [2004] NSWCCA 201

R v Macdonnell [2002] NSWCCA 34

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 1 - 2006
No. SCC 118 of 2005

Judges: Higgins CJ, Gray and Ryan JJ
Court of Appeal of the Australian Capital Territory
Date: 1 September 2006

IN THE SUPREME COURT OF THE	)	No. ACTCA 1 - 2006
AUSTRALIAN CAPITAL TERRITORY	)	No. SCC 118 of 2005
COURT OF APPEAL	)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: STUART GORDON APPS
Appellant

AND: THE QUEEN
Respondent

ORDER

Judges:	Higgins CJ, Gray and Ryan JJ
Date:	1 September 2006
Place:	Canberra

THE COURT ORDERS THAT:

The appeal be upheld.
The sentences imposed upon the appellant be set aside.
In lieu thereof, the plea to aggravated robbery be set aside and a plea to robbery substituted.
The sentence for robbery be two years and six months. All other sentences confirmed.
Non-parole period be set at 12 months. Sentences to commence on 7 October 2005. Non-parole period to conclude on 6 October 2006.

IN THE SUPREME COURT OF THE	)	No. ACTCA 1 - 2006
AUSTRALIAN CAPITAL TERRITORY	)	No. SCC 118 of 2005
COURT OF APPEAL	)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT
OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: STUART GORDON APPS
Appellant

AND: THE QUEEN
Respondent

Judges:	Higgins CJ, Gray and Ryan JJ
Date:	1 September 2006
Place:	Canberra

REASONS FOR JUDGMENT

THE COURT:

This is an appeal against a sentence imposed by a judge of the court consequent upon the conviction of the appellant pursuant to a plea of guilty on one count of aggravated robbery and five counts of obtaining property by deception. On the charge of aggravated robbery, the appellant was sentenced to three years and six months imprisonment with a non-parole period of 18 months. On each charge of obtaining property by deception, he was sentenced to 12 months imprisonment, each sentence to be served concurrently with the sentence imposed…

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 Stuart Gordon Apps v The Queen

Details

AGLC: Stuart Gordon Apps v The Queen [2006] ACTCA 16
Case: [2006] ACTCA 16
Decision Date

CaseChat Overview and Summary

The appeal concerned Stuart Gordon Apps, who pleaded guilty to one count of aggravated robbery and five counts of obtaining property by deception. He was sentenced by a judge of the Supreme Court of the Australian Capital Territory to three years and six months imprisonment with a non-parole period of 18 months for the aggravated robbery, and concurrent 12-month sentences for the deception offences. The appeal was heard by the Court of Appeal of the Australian Capital Territory.

The legal issues before the Court of Appeal included whether the sentence imposed was appropriate to the appellant's culpability, particularly concerning the extent of his responsibility for the victim's serious injuries. Another issue was whether the sentencing judge was entitled to rely on a victim impact statement, which was not sworn testimony, to find that the victim had suffered very serious injuries. Finally, the court considered the significance of the appellant's prior offences dealt with in the ACT Children's Court, where no convictions were recorded, in assessing his culpability for the aggravated robbery. The court also considered whether the sentencing judge had complied with section 358 of the Crimes Act 1900 (ACT) regarding discounts for promised cooperation with investigating authorities.

The Court of Appeal reasoned that the appellant's plea to aggravated robbery, based on being "in company," was questionable. While the appellant was accompanied by another offender who brought a baseball bat, the common purpose for their presence was to "warn off" the victim, not to commit robbery or inflict violence. The court held that for the offence of aggravated robbery by being "in company," there must be a shared common purpose for the robbery itself, which was not established here. The robbery was opportunistic, and the co-offender's subsequent assault with the bat was not part of a common purpose to rob. The court also found that the sentencing judge may have given undue weight to the appellant's prior Children's Court record.

Consequently, the Court of Appeal upheld the appeal, set aside the sentences imposed, and substituted a plea to simple robbery for the aggravated robbery charge. The appellant was sentenced to two years and six months imprisonment for robbery, with a non-parole period of 12 months. All other sentences were confirmed, and the sentences were ordered to commence on 7 October 2005, with the non-parole period concluding on 6 October 2006.

Orders