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Towers v The Queen

Towers v The Queen

Case [2008] NSWCCA 283 22 December 2008

Appeal

Sentencing

Aggravated & Exemplary Damages

Vulnerability of Victim

Revokation of Parole

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Towers v R [2008] NSWCCA 283

HEARING DATE(S): 19/11/08

JUDGMENT DATE:
22 December 2008

JUDGMENT OF: Beazley JA at 1; Kirby J at 2; Hall J at 76

DECISION: (1) Leave to appeal granted.
(2) The appeal allowed.
(3) The sentence imposed by Bennett DCJ is quashed and, in lieu thereof:
Count 2: Taking account of the offences on the Form 1, a non parole period of 2 years to commence on 19.7.07 and to expire on 18.7.09; with an additional term of 2 years 6 months to commence on 19.7.09 and to expire on 18.1.12.
Counts 3 and 4: In each case, a fixed term of 1 years imprisonment to commence on 19.7.07 and to expire on 18.7.08.
Count 5: A fixed term of 9 months to commence on 19.7.07 and to expire on 18.4.08.
The earliest date upon which the applicant will become eligible to be released on parole is 18.7.09.

CATCHWORDS: Criminal Practice & Procedure - appeal against sentence - home invasion and assault - matters of aggravation - whether double punishment to use violence to aggravate home invasion and charge assault - vulnerability of victim - victims in early 60's - revocation of parole - whether sentence should be backdated - whether sentence manifestly excessive.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Correctional Centres Act 1952 (NSW)
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: R v Kerrie-Ellen Robyn Knight [2005] NSWCCA 253
R v Wickham [2004] NSWCCA 193
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Lucy Dudko [2002] NSWCCA 336; (2002) 132 A Crim R 371
Kokaua v Regina [2008] NSWCCA 111
R v Tadrosse [2005] NSWCCA 145; (2005) 65 NSWLR 740
Postiglione v The Queen [1997] HCA 26; (1996-1997) 189 CLR 295
Callaghan v Regina [2006] NSWCCA 58; (2006) 160 A Crim R 145
R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394
R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
R v MAK and MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41
SGJ v R; KU v R [2008] NSWCCA 258

PARTIES: Alicia Lee Towers (Appl)
Regina (Resp)

FILE NUMBER(S): CCA 2007/5106

COUNSEL: H Cox (Appl)
V Lydiard (Resp/Crown)

SOLICITORS: K Wells - ALS (Appl)
S Kavanagh (Resp/Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/31/0143

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

LOWER COURT DATE OF DECISION: 26/10/07

CCA 2007/5106

BEAZLEY JA
KIRBY J
HALL J
Monday 22 December 2008

Alicia Lee TOWERS v REGINA

Judgment

1 BEAZLEY JA: I agree with Kirby J.

2 KIRBY J

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 Towers v The Queen

Details

AGLC: Towers v The Queen [2008] NSWCCA 283
Case: [2008] NSWCCA 283
Decision Date: 22 December 2008

CaseChat Overview and Summary

Towers appealed against the sentence imposed by the trial judge, following his conviction for home invasion and assault. The appeal was heard by the Court of Appeal, which was required to determine several issues, including whether the trial judge erred in considering certain matters of aggravation and whether the sentence was manifestly excessive. The appellant also sought to have the sentence backdated to the date of his parole revocation.

The Court of Appeal held that the trial judge did not err in considering the matters of aggravation in the sentence. It was determined that using violence to facilitate a home invasion and subsequently charging the offender with assault did not constitute double punishment. The court emphasised that the vulnerability of the victims, who were in their early 60s, was a relevant factor in the sentencing process. The Court of Appeal also dismissed the appellant's argument that the sentence should be backdated to the date of his parole revocation. The appeal was ultimately dismissed, and the original sentence was upheld.

Orders