R v Tobar; R v JAN [2004] NSWCCA 391

Reported Decision : 150 A Crim R 104

New South Wales Court of Criminal Appeal

CITATION : R v Tobar; R v JAN [2004] NSWCCA 391 HEARING DATE(S) : 8 November 2004 JUDGMENT DATE : 19 November 2004

JUDGMENT OF : Dunford J at 1; Simpson J at 2; Hidden J at 66 DECISION : Tobar: 1. Application for leave to appeal granted; 2. Appeal allowed; 3. Each sentence imposed in the District Court be quashed and in lieu thereof, Tobar be sentenced as follows: (i) armed robbery with wounding: imprisonment with a non-parole period of three years, to commence on 3 November 2003, and expire on 2 November 2006, with a balance of term of three years and three months, to expire on 2 February 2010; (ii) on each other charge: imprisonment with a non-parole period of two and a half years to commence on 3 November 2003, and expire on 2 May 2006, with a balance of term of two and a half years, to expire on 2 November 2008 ; JAN: 1. Application for leave to appeal granted; 2. Appeal allowed; 3. Each sentence imposed in the District Court be quashed and in lieu thereof, JAN be sentenced as follows: (i) armed robbery with wounding: imprisonment with a non-parole period of three years, to commence on 27 March 2003, and expire on 26 March 2006, with a balance of term of three years and three months, to expire on 26 June 2009; (ii) on each other charge: imprisonment with a non-parole period of two and a half years to commence on 27 March 2003, and expire on 26 September 2005, with a balance of term of two and a half years, to expire on 26 March 2008; 4. Each sentence to be served in a detention centre until the applicant attains the age of 21 years or until such date as he is released on parole, whichever is the earlier.

CATCHWORDS : appeal against sentences - armed robbery - armed robbery with wounding - assault with intent to rob whilst armed - Form 1 offences - juvenile offender - pleas of guilty - co-offender's sentence reduced by this Court - subjective circumstances - determination of sentences - re-sentencing Children (Criminal Proceedings) Act 1987, s19 Crimes Act 1900 s97(1), s98 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Part 3, Division 3, Part 4, Division 1A, s21A, s44, s54A, s54B, Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 Sentencing Act 1989, s5 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 CASES CITED : R v Moffitt (1990) 20 NSWLR 114 R v P [2004] NSWCCA 218 R v Way [2004] NSWCCA 131 Crown - Respondent PARTIES : Gerardo Tobar - Applicant JAN - Applicant FILE NUMBER(S) : CCA 2004/2055; 2004/2249 Crown - DC Frearson SC COUNSEL : Applicant Tobar - P Hamill SC Applicant JAN - H Dhanji Crown - S Kavanagh (Solicitor for Public Prosecutions) SOLICITORS : Applicant Tobar - S O'Connor (Legal Aid Commission) Applicant JAN - C Hunter