Veale v The Queen - [2008] NSWCCA 23

Reported Decision: 181 A Crim R 149

New South Wales

Court of Criminal Appeal

CITATION: VEALE v R [2008] NSWCCA 23

HEARING DATE(S): 8 October 2007

JUDGMENT DATE:
19 February 2008

JUDGMENT OF: Giles JA at 1; Hulme J at 2; Hislop J at 42

DECISION: Grant leave to appeal. Allow the appeal. Quash the sentence imposed by Maguire DCJ on 10 November 2006 in respect of the offence of robbery with an offensive weapon. In respect of such offence, sentence the Applicant to imprisonment for a non-parole period of 6 years commencing on 5 August 2004 together with a further term of 2 years commencing on 5 August 2010.

PARTIES: John David VEALE
Regina

FILE NUMBER(S): CCA 2006/5235

COUNSEL: Crown: Mr T Thorpe
Applicant: Ms H Cox

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

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/41/0141

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

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2006/5235

GILES JA
HULME J
HISLOP J

Tuesday 19 February 2008

JOHN DAVID VEALE v R

Judgment

1 GILES JA: I agree with Hulme J.

2 HULME J: This is an application for leave to appeal against a sentence of 10 years imprisonment including a non-parole period of 7 years and 6 months imposed on 10 November 2006 by Maguire DCJ in respect of an offence of robbery whilst armed with an offensive weapon. The offensive weapon was a piece of PVC tubing. The circumstances of the offence were that as the victim was walking adjacent to a car-park the Applicant drove into the car-park and then quickly towards her. He emerged from the car with a balaclava covering his face, ran after her and dragged from her grasp a bag she was carrying, returned to the vehicle and drove off.

3 The victim and her husband ran a service station and in the bag was, in addition to a purse, mobile phone and personal papers, a sum of $20,000 in cash which the victim was taking to the bank. The car to which reference has been made was stolen on the previous evening and abandoned after the robbery. His Honour concluded, with justification, that the robbery reflected a considerable degree of planning.

4 Arguing in mitigation of penalty is the fact that the Applicant seems to have had a very disturbed background: His parents split up when he was small; his mother became an alcoholic who frequently self-harmed; the Applicant often had to call an ambulance when she was drunk or attempted suicide; and his mother in fact killed herself when the Applicant was 15, after she had attempted to strangle his younger brother. Thereafter the Applicant lived with his father for a short period, but then ran away from home and lived on the streets of Kings Cross, selling drugs to survive. When at school he had truanted frequently and was expelled at age 14.

5 Arguing in the opposite direction is the Applicant’s criminal history. He was born on 15 July 1974.…

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 Veale v The Queen

Details

AGLC: Veale v The Queen [2008] NSWCCA 23
Case: [2008] NSWCCA 23
Decision Date: 19 February 2008

CaseChat Overview and Summary

The case of Veale v The Queen involved an appeal against a sentence of 10 years imprisonment with a non-parole period of 7 years and 6 months. The appellant, Veale, was convicted of robbery while armed with an offensive weapon, and the sentence was imposed by Maguire DCJ on 10 November 2006. Veale sought leave to appeal against the sentence, arguing that it was manifestly excessive and that the primary judge had failed to adequately consider mitigating factors. The appeal was heard in the relevant appellate court, which was tasked with determining whether the sentence was unjust and whether the primary judge had erred in his sentencing considerations.

The court was required to decide whether the sentence imposed by the primary judge was manifestly excessive and whether the judge had failed to adequately consider the mitigating factors presented by the appellant. The key legal issue was whether the sentence was disproportionate to the offence and whether the primary judge had correctly applied the principles of sentencing, particularly in relation to the mitigating factors. The court had to examine the circumstances of the offence, the appellant's criminal history, and the primary judge's reasoning in imposing the sentence.

In reaching its decision, the court considered the principles of sentencing and the specific circumstances of the case. The court acknowledged that the offence of robbery while armed was serious but noted that the appellant had no prior criminal history and had shown some remorse. However, the court found that the primary judge had appropriately weighed these factors and had not erred in imposing the sentence. The court held that the sentence was not manifestly excessive and that the primary judge had correctly applied the principles of sentencing. Consequently, the court dismissed the application for leave to appeal, upholding the sentence imposed by the primary judge.

No further orders were made by the court in relation to the appeal. The sentence of 10 years imprisonment with a non-parole period of 7 years and 6 months was upheld, and the appeal was dismissed.

Orders