XX v R

Case [2018] NSWCCA 112 9 July 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: XX v R [2018] NSWCCA 112
Hearing dates: 11 May 2018
Date of orders: 09 July 2018
Decision date: 09 July 2018
Before: White JA at [1]
Johnson J at [2]
Harrison J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – robbery while armed with a dangerous weapon – assault with intent to rob while armed with a dangerous weapon – possess unauthorised pistol taken into account on a Form 1 – whether sentence manifestly excessive – whether starting points for each offence too high – whether sentences consistent with comparable cases – where offender received 45 percent discount – where no error demonstrated – leave to appeal granted but appeal dismissed
Legislation Cited: Crimes Act 1900 (NSW), s 97(2)
Firearms Act 1996 (NSW), s 7(1)
Cases Cited: Baleiovalau v R [2015] NSWCCA 305
Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hudson v R [2007] NSWCCA 302
Hudson v R [2016] NSWCCA 30
Hughes v R [2018] NSWCCA 2
Johnson v R; Moody v R [2010] NSWCCA 124
Legge v R [2007] NSWCCA 244
Moore v R [2010] NSWCCA 188
R v Davies [2015] NSWCCA 224
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Jurisic (1998) 45 NSWLR 209
R v Majstrovic [2000] NSWCCA 420
Robertson v R [2017] NSWCCA 205
Somba v R [2012] NSWCCA 214
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Category: Principal judgment
Parties: XX (Applicant)
Regina (Respondent)
Representation:
Counsel:
L Fernandez (Applicant)
B Hatfield (Respondent)
Solicitors:
Younes + Espiner Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/167118
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 July 2017

Before:

Hoy DCJ

File Number(s):

2016/17560
2016/167118

Judgment

WHITE JA: I agree with Harrison J.
JOHNSON J: I agree with Harrison J.
HARRISON J: The applicant seeks leave to appeal against the severity of two sentences imposed upon him by Hoy DCJ in the District Court of New South Wales on 18 July 2017. The single ground of appeal is that the sentences were manifestly excessive.
The applicant was sentenced to an overall period of imprisonment of 5 years and 6 months with a non-parole period of 3 years and 8 months. His Honour imposed the following individual sentences:

Count 1: Robbery while armed with a dangerous weapon contrary to s 97(2) of the Crimes Act 1900 to a term of imprisonment of 5 years and 6 months with a non-parole period of 3 years and 6 months commencing on 18 January 2016 and expiring on 17 July 2019 and a balance of term expiring on 17 July 2021. A further offence of…

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 XX v R

Details

AGLC: Xx v The Queen [2018] NSWCCA 112
Case: [2018] NSWCCA 112
Decision Date: 09 July 2018

CaseChat Overview and Summary

The case of XX v R involved an appeal against sentence imposed by the lower court for two offences: robbery while armed with a dangerous weapon and assault with intent to rob while armed with a dangerous weapon. The appellant argued that the sentence was manifestly excessive and that the starting points for each offence were too high. Additionally, the appellant contended that the sentences were inconsistent with comparable cases. The High Court of Australia was tasked with determining whether the appeal should be allowed.

The court had to decide whether the sentence imposed was manifestly excessive, whether the starting points for each offence were appropriately set, and whether the sentences were consistent with similar cases. In addressing these issues, the court considered the nature and circumstances of the offences, the appellant's criminal history, and the discount applied to the overall sentence. The court also examined comparable cases to assess the proportionality and consistency of the sentence.

Upon reviewing the evidence and arguments, the High Court found that no error was demonstrated in the sentence imposed by the lower court. The court confirmed that the sentence was not manifestly excessive and that the starting points for each offence were correctly applied. The court also determined that the sentences were consistent with comparable cases, considering the appellant's significant discount of 45 percent. Consequently, the court granted leave to appeal but ultimately dismissed the appeal.

The final orders of the court were to dismiss the appeal against the sentence imposed by the lower court. The court's decision affirmed the lower court's assessment of the appropriate sentence for the offences committed by the appellant.

Orders