R v P [2004] NSWCCA 218

New South Wales Court of Criminal Appeal

CITATION : R v P [2004] NSWCCA 218 revised - 11/11/2004 HEARING DATE(S) : Monday 28 June 2004 JUDGMENT DATE : 30 June 2004

JUDGMENT OF : Ipp JA at 1; Hulme J at 2; Hislop J at 56 DECISION : See paragraph 55

PARTIES : Regina CP FILE NUMBER(S) : CCA 60236/04 COUNSEL : Crown: G Rowling Applicant: J Stratton SC SOLICITORS : Crown: S Kavanagh Applicant: S O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0634 FILE NUMBER(S) : LOWER COURT Urquhart DCJ JUDICIAL OFFICER :

- 17 - IN THE COURT OF CRIMINAL APPEAL 60236/04

IPP JA HULME J HISLOP J

Wednesday 30 June 2004 R v P Judgment 1 IPP JA: I agree with Hulme J. 2 HULME J: On 27 February 2004 Judge Urquhart sentenced the abovenamed Applicant in respect of two offences. The first was that on 27 March 2003 at Rozelle, while armed with offensive weapons, namely a meat cleaver and baseball bat he robbed Oliver Cowdrey of a wallet and its contents and immediately after the robbery wounded Mr Cowdrey. In respect of this offence the Applicant was sentenced to imprisonment for a non-parole period of 6 years commencing on 27 March 2003 together with a further term of 5 years. 3 The second offence was that on 27 March 2003 at Paddington being armed with offensive weapons, namely a meat cleaver and a baseball bat the Applicant robbed Jason Marlatt of a watch and a wallet and its contents. In respect of this offence the Applicant was sentenced to imprisonment for a non-parole period of 3 years also commencing on 27 March 2003 together with a further term of 3 years. His Honour directed that the term of each sentence be served in a detention centre until the Applicant attained the age of 19 years and 2 months, an event which will occur on 7 July 2004. 4 The first of these offences arises under s98 of the Crimes Act and carries a maximum penalty of imprisonment for 25 years. The second arises under s97(1) of that Act and carries a maximum penalty of imprisonment for 20 years. 5 In imposing the sentence on the first of these offences, Judge Urquhart took into account three further offences. Two were of armed robbery contrary to s97(1) of the Crimes Act. The victims were with Mr Cowdrey at the time he was robbed and in each case the property stolen was a wallet and its contents. The third offence on the Form 1 was also contrary to s97(1) of the Crimes Act and was of assault with intent to rob whilst armed. The victim of this offence was with Mr Marlatt when the latter was robbed. 6 The circumstances of the offences were:- At about 8.30pm, Mr Cowdrey and two other victims were in the street when approached by the Applicant and two co-offenders Messrs JAN and Tobar. Mr JAN was armed with a baseball bat and the Applicant with a meat cleaver. The Applicant approached Mr Cowdrey, placed him in a headlock and pushed the meat cleaver against Mr Cowdrey's throat saying "give me your wallet." Mr Cowdrey did so. The wallet contained $300 and some personal items. Mr Tobar robbed one of the other men. All three victims were ordered to face a fence and not move. Mr JAN patted one of the victims down and then Messrs Robar and JAN started to run away. The Applicant who was then more or less behind Mr Cowdrey slashed at him with the meat cleaver a blow which resulted in a deep laceration to his chin area requiring 16 stitches and a 10cm long laceration to his right wrist extending down to the bone. The Applicant then fled and the three offenders left the area. At about 8.45pm that evening Mr Marlatt and another victim were walking along a street in Paddington when the Applicant and his co-offenders approached them. Mr JAN pushed his baseball bat into Mr Marlatt's chest and shoulder until the latter was leaning against a car. Demand was made for Mr Marlatt's possessions and at this time the Applicant produced the meat cleaver, held it to Mr Marlatt's throat and threatened to cut him. Mr Marlatt handed over his wrist watch and the Applicant removed Mr Marlatt's wallet from his jeans. At this stage Mr Marlatt's companion called out and the Applicant started to walk towards him swinging the meat cleaver. At this time Mr JAN swung the baseball knocking Mr Marlatt to the ground unconscious. The assault on Mr Marlatt's companion was the third item on the Form 1.