Regina v Russell [2003] NSWCCA 279

New South Wales Court of Criminal Appeal

CITATION : Regina v Russell [2003] NSWCCA 279 HEARING DATE(S) : 17 September 2003 JUDGMENT DATE : 1 October 2003

JUDGMENT OF : Hidden J at 1; Greg James J at 2; Smart AJ at 3 DECISION : (1) Appeal against conviction dismissed (2) Leave to appeal against sentence granted. Appeal against sentence allowed. Sentence quashed. (3) In lieu of the sentence imposed, the appellant is sentenced to 6 years imprisonment to date from 9 May 2002 and expiring on 8 May 2008, with a non-parole period of 3 years commencing 9 May 2002 and ending 8 May 2005.

CATCHWORDS : Armed robbery - evidence sufficient to support conviction - forceful and adequate warnings as to possibly unreliable evidence - no miscarriage - fresh evidence and adverse publicity grounds rejected - mistake in sentencing exercise - offender convicted of lesser offence LEGISLATION CITED : Crimes Act 1900 CASES CITED : R v Henry (1999) 46 NSWLR 346 PARTIES : Regina v Glen Mark Russell FILE NUMBER(S) : CCA 60331/02 COUNSEL : (A) In Person (C) Mr D Arnott SOLICITORS : (A) In Person (C) S E O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 01/71/0095 FILE NUMBER(S) : LOWER COURT Morgan DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60331/2002

HIDDEN J GREG JAMES J SMART AJ

Wednesday, 1 October 2003 R v. Glen Mark RUSSELL

JUDGMENT

1. HIDDEN J: I agree with Smart AJ.

2. GREG JAMES J: I agree with Smart AJ.

3. SMART AJ: Glen Mark Russell appeals against his conviction of armed robbery with an offensive weapon contrary to s. 97 (1) of Crimes Act 1900. He was acquitted of the more serious charge of aggravated armed robbery, that is, being armed with a dangerous weapon, namely a sawn-off firearm and whilst being in company with Warren Harvey Stanton. Mr Russell also seeks leave to appeal against his sentence of seven years imprisonment with a non parole period of 4 years. Stanton who was jointly tried with the appellant was found not guilty of both the principal charge under s. 97 (2) and the statutory alternative under s. 97(1). The evidence against Stanton was weaker than that against the appellant. At the trial it was not disputed that there had been an armed robbery. The issues were whether the appellant was one of the robbers and whether Stanton was one of the robbers.