REGINA v. WELLS [2006] NSWCCA 279

New South Wales Court of Criminal Appeal

CITATION: REGINA v. WELLS [2006] NSWCCA 279

HEARING DATE(S): Monday 24 April 2006

JUDGMENT DATE: 7 September 2006

JUDGMENT OF: McClellan CJ at CL at 1; James J at 2; Hall J at 3

DECISION: (a) The sentences imposed in the District Court on 10 October 2005 in respect of the offence of break, enter and steal (s.112(1), Crimes Act 1900), and the sentence imposed in respect of the offence of use offensive weapon to prevent lawful detention (s.33B(1)(a), Crimes Act 1900) and the armed robbery offence (s.97(1), Crimes Act 1900) be quashed; (b) That the respondent be re-sentenced as follows: (i) In respect of the offence of armed robbery, the respondent be re-sentenced to a non-parole period of one year and eight months to commence on 23 August 2004 and to expire on 22 April 2006 and a parole period of two years and four months to commence on 23 April 2006 and to expire on 22 August 2008; (ii) In respect of the offence of break, enter and steal, the respondent be re-sentenced to a fixed term of imprisonment of one year and two months to commence on 23 August 2005 and to expire on 22 October 2006; (iii) In respect of the offence of use offensive weapon to prevent lawful detention, the respondent be re-sentenced to a fixed term of imprisonment of one year to commence on 23 April 2006 and to expire on 22 April 2007; (c) The earliest date on which the respondent will be eligible for release on parole is 22 April 2007.

CATCHWORDS: SENTENCING – Crown appeal against sentence on the basis that the sentences were manifestly inadequate – respondent convicted of three separate offences – allegation of leniency arises by reason of both the leniency of the sentence imposed for the offence of armed robbery and of the concurrency of the sentences imposed – commencement date of sentences precluded punishment beyond the punishment imposed for the first offence – error of principle affecting the structure of the sentences imposed in the District Court and inadequate allowance made for the objective criminality of the offence of break, enter and steal and the offence of use offensive weapon to prevent lawful detention justification for appellate intervention