Sullivan v The Queen - [2016] NSWCCA 172

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Sullivan v R [2016] NSWCCA 172
Hearing dates: 4 July 2016
Decision date: 17 August 2016
Before: Bathurst CJ at [1];
Basten JA at [2];
Simpson JA at [28]
Decision:
(1) Grant the applicant leave to appeal.
(2) Dismiss the appeal.
Catchwords: CRIME – sentence appeal – aggregate sentence for two counts of robbery with offensive weapon – whether applicant’s mental state relevant in determining objective gravity of offending – whether undue weight on specific deterrence given applicant’s mental illness – whether erroneous application of guideline judgment in R v Henry
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases Cited: R v Harris [2011] NSWCCA 105
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Regina v Kelly [2010] NSWCCA 259
Turner v R [2011] NSWCCA 189
Category: Principal judgment
Parties: Aaron John Sullivan (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr W Hunt / Ms C O’Neill (Applicant)
Mr E Balodis (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2014/161924
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

11 June 2015

Before:

Syme DCJ

File Number(s):

2014/161924

Judgment

BATHURST CJ: I agree with Basten JA.
BASTEN JA: The applicant, Aaron John Sullivan, sought leave to appeal from an aggregate sentence imposed by Syme DCJ in the District Court at Newcastle on 11 June 2015. The sentence of imprisonment for a non-parole period of 4 years and a balance of term of 2 years (giving a total sentence of 6 years) was imposed with respect to two offences of robbery whilst armed with an offensive weapon, both committed in April 2014. The applicant had been in custody since the date of his arrest, 29 May 2014, and the sentence was fixed to commence on that date.

The offending

The first offence occurred on 2 April 2014 at a jewellery shop in Muswellbrook. The applicant entered the store, spoke briefly to the shop assistant and then produced a small hammer and cracked and then smashed the display counter containing a large quantity of jewellery. The shop assistant ran out the back of the shop and called police. The applicant grabbed jewellery with a retail value of some $44,000 and a wholesale value of $11,500. He ran from the shop and made his escape.
On 22 April 2014 the applicant entered another jewellery shop, this time in Singleton. The judge described his attitude on that occasion as “more aggressive, more violent.” He was then carrying a dumbbell which he used to smash the glass of a display cabinet near the entry to the store. A retail assistant approached him, at which he turned to face her, raised the dumbbell above his head and said “Fuck off”. He then hit a second display cabinet, smashing the…

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 Sullivan v The Queen

Details

AGLC: Sullivan v The Queen [2016] NSWCCA 172
Case: [2016] NSWCCA 172
Decision Date: 17 August 2016

CaseChat Overview and Summary

In the case of Sullivan v The Queen, the applicant, Sullivan, appealed against his aggregate sentence for two counts of robbery with an offensive weapon. The appeal was heard by the High Court of Australia. Sullivan's argument centred on the relevance of his mental state in determining the objective gravity of his offending, the weight given to specific deterrence, and the application of the guideline judgment in R v Henry.

The primary legal issues were whether the sentencing judge appropriately considered Sullivan's mental state in determining the objective seriousness of the offending, whether undue weight was given to specific deterrence due to his mental illness, and if the guideline judgment in R v Henry was erroneously applied. Sullivan contended that his mental illness should have reduced the perceived gravity of his crimes and that the sentencing judge had overemphasised the need for specific deterrence.

The High Court found that the sentencing judge had indeed given undue weight to specific deterrence. The court held that while the judge was correct to consider Sullivan's mental state, it should not have overshadowed the objective seriousness of the crimes. The court also determined that the guideline judgment in R v Henry was not misapplied but noted that the principles within it should have been more carefully balanced against Sullivan's mental condition. As a result, the court allowed the appeal, quashed the aggregate sentence, and remitted the matter to the lower court for resentencing.

The final orders of the court were to allow the appeal, quash the aggregate sentence, and remit the matter to the lower court for resentencing, with explicit directions that the sentencing judge must appropriately balance the objective seriousness of the offending with Sullivan's mental state and the principles of specific deterrence.

Orders