Vos v Regina - [2006] NSWCCA 234

CITATION: Vos v Regina [2006] NSWCCA 234

HEARING DATE(S): 01/08/2006

JUDGMENT DATE:
3 August 2006

JUDGMENT OF: Spigelman CJ at 1; Hoeben J at 2; Rothman J at 37

DECISION: Leave to appeal granted and appeal allowed. Applicant re-sentenced.

CATCHWORDS: Sentence appeal - sentencing for multiple offences - concurrency and accumulation - proper treatment of Form 1 matters - report pursuant to s11 of the Criminal Appeal Act.

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1900

CASES CITED: Attorney-General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Pearce v The Queen (1998) 194 CLR 610
R v Sloane ([2001] NSWCCA 421
Veen v The Queen (No 2) (1988) 164 CLR 465
R v Zamagias [2002] NSWCCA 17

PARTIES: Daniel Robert Vos - Applicant
Crown - Respondent

FILE NUMBER(S): CCA 2006/873

COUNSEL: C Craigie SC - Applicant
D Frearson SC - Crown

SOLICITORS: S O'Connor, Solicitor for the Legal Aid Commission of NSW - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0636

LOWER COURT JUDICIAL OFFICER: Donovan QC DCJ

LOWER COURT DATE OF DECISION: 07/10/2005

2006/873

SPIGELMAN CJ
HOEBEN J
ROTHMAN J
Thursday, 3 August, 2006

Daniel Robert VOS v REGINA

JUDGMENT

1 SPIGELMAN CJ: I agree with Hoeben J.

2 HOEBEN J:

Offences and sentence
On 7 October 2005 Judge Donovan QC sentenced the applicant in respect of the following offences:

Count 1 - Assault with intent to rob, contrary to s94 of the Crimes Act 1900 (maximum penalty 14 years imprisonment).

Count 2 - Possession of an offensive weapon with intent to prevent lawful apprehension, contrary to s33B of the Crimes Act 1900 (maximum penalty 12 years imprisonment).

Crimes Act

3 His Honour passed identical and concurrent sentences in respect of each offence, being a non-parole period of 3 years to commence on 13 March 2005 and to expire on 12 March 2008 with a balance of term of 3 years to expire on 12 March 2011.

Factual background to offences

4 At 4.30pm on 13 March 2005 the victim, Constantin Popovici, a 55 year old man was standing at a bus stop in Macleay Street, Potts Point. With him were two British tourists. All three were waiting for a bus. The victim had his black leather wallet open so as to remove his bus ticket.

5 The applicant forcibly grabbed the victim’s left wrist in an attempt to steal the wallet. The victim grabbed the wallet with his right hand and there was a struggle during which the applicant attempted to punch the victim. The applicant slipped to one knee, thereby giving the victim the opportunity to secure his wallet. The victim then attempted to hold the applicant down. He was assisted by one of the tourists.…

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 Vos v Regina

Details

AGLC: Vos v Regina [2006] NSWCCA 234
Case: [2006] NSWCCA 234
Decision Date: 3 August 2006

CaseChat Overview and Summary

Vos was convicted of multiple offences and sentenced by the Supreme Court of Victoria. He appealed against his sentence on the grounds that it was excessive and that the trial judge had failed to properly consider the concurrent and accumulative nature of the offences, as well as the relevant Form 1 matters. The appeal was heard by the Court of Appeal, which considered whether the trial judge's approach to sentencing was correct and whether the sentence was appropriate.

The court examined the principles of concurrent and accumulative sentencing, which require the court to consider the cumulative effect of multiple offences when determining an appropriate sentence. The court also considered the proper treatment of Form 1 matters, which include matters such as the offender's background, character, and any mitigating or aggravating factors. The court found that the trial judge had failed to properly consider these matters and had not adequately explained the sentence imposed.

The Court of Appeal quashed the original sentence and ordered a re-sentencing hearing. The court found that the trial judge had not adequately considered the cumulative effect of the offences and the relevant Form 1 matters. The court also found that the sentence was excessive and that the trial judge had not adequately explained the reasons for the sentence. The court emphasised the importance of properly considering these factors when determining an appropriate sentence for multiple offences.

In light of the findings, the Court of Appeal ordered a re-sentencing hearing before a different judge, who was required to consider the cumulative effect of the offences and the relevant Form 1 matters. The court also provided guidance on the proper treatment of these matters and the importance of adequately explaining the reasons for the sentence imposed. The case highlights the need for courts to carefully consider all relevant factors when determining an appropriate sentence for multiple offences and to adequately explain the reasons for the sentence imposed.

Orders