Tilyard v Regina - [2007] NSWCCA 7

New South Wales
Court of Criminal Appeal

CITATION: Tilyard v Regina [2007] NSWCCA 7
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24/01/2007

JUDGMENT DATE:
29 January 2007

JUDGMENT OF: Adams J at 1; Howie J at 2; Price J at 33

DECISION: Application for leave to appeal granted but the appeal is dismissed.

CATCHWORDS: Criminal Law - Sentence - Robbery with a dangerous weapon - relevance of alcohol addiction - whether sentence manifestly excessive - whether error in finding no special circumstances.

LEGISLATION CITED: Crimes Act 1900 - s 97(2)
Crimes (Sentencing Procedure) Act 1999 - s 3A

CASES CITED: R v Henry (1999) 46 NSWLR 346
R v Israil [2002] NSWCCA 255

PARTIES: Douglas Malcolm Tilyard v Regina

FILE NUMBER(S): CCA 2006/2352

COUNSEL: P. Ingram - Crown
J. Manuell - Applicant

SOLICITORS: S. Kavanagh - Crown
S. O'Connor - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/21/3202

LOWER COURT JUDICIAL OFFICER: Hughes DCJ

LOWER COURT DATE OF DECISION: 25/11/2005

2006/2352

ADAMS J
HOWIE J
PRICE J
MONDAY 29 JANUARY 2007

Douglas Malcolm TILYARD v REGINA

Judgment

1 ADAMS J: I agree with Howie J

2 HOWIE J: The applicant was convicted by a jury of a charge of robbery with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900. This is an offence that carries a maximum penalty of imprisonment for 25 years. On 25 November 2005 Hughes DCJ (the Judge) sentenced him to a term of imprisonment made up of a non-parole period of four and a half years and an additional term of one and a half years. The sentence was to commence on 3 February 2004 and the applicant is eligible for release to parole on 2 August 2008. The applicant seeks leave to appeal against this sentence.

3 The Judge recited the following facts during his sentencing remarks. On 3 February 2004 in the early evening the applicant entered a chemist shop in Liverpool armed with a loaded revolver. The applicant approached the counter and asked the owner of the shop whether he kept morphine. He was told that they did not stock the drug and that it had to be ordered. The applicant claimed that he had a prescription for the drug but then produced the revolver from behind his back and pointed it in the direction of the storeowner. He demanded money. The owner opened the till and threw cash onto the counter. The applicant demanded more money but was informed that it was kept in a time delay safe. The applicant took the money from the counter, about thirty dollars, and walked out of the shop. He was arrested a short time later with the revolver tucked into his pants in the small of his back. There were five rounds in the revolver.

4 The applicant stood trial on the basis that he could not recall committing the offence. However, 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 Tilyard v Regina

Details

AGLC: Tilyard v Regina [2007] NSWCCA 7
Case: [2007] NSWCCA 7
Decision Date: 29 January 2007

CaseChat Overview and Summary

Tilyard appealed against his conviction for robbery with a dangerous weapon, arguing that the sentence was manifestly excessive and that the trial judge erred in finding no special circumstances. The respondent, the Crown, opposed the appeal. The nature of the dispute was whether the sentence imposed was appropriate given the circumstances, particularly the appellant's alcohol addiction.

The central legal issues were whether the sentence was manifestly excessive and whether the trial judge erred in concluding there were no special circumstances. The court considered the appellant's alcohol addiction and its impact on his culpability, along with the severity of the crime and the need for deterrence and retribution. The court examined whether the trial judge correctly assessed the circumstances of the offence and the appellant's background.

The court found that the sentence was not manifestly excessive. The trial judge had considered the appellant's alcohol addiction and its impact on his actions. The court also held that there was no error in the trial judge's finding that there were no special circumstances warranting a reduced sentence. The appeal was dismissed, and the original sentence was upheld.

Orders