Bain v Regina [2006] NSWCCA 79

Reported Decision : 161 A Crim R 36

New South Wales Court of Criminal Appeal

CITATION: Bain v Regina [2006] NSWCCA 79

HEARING DATE(S): 31 January 2006

JUDGMENT DATE: 24 March 2006

JUDGMENT OF: Sully J at 1; Adams J at 47

DECISION: Leave to appeal against sentence granted; Appeal against sentence dismissed

LEGISLATION CITED: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)

Reg v Youkhana [2004] NSWCCA 412 Reg v Slack [2004] NSWCCA 128 Reg v Wilson [2005] NSWCCA 219 CASES CITED: Veen v The Queen (No. 2) (1988) 164 CLR 465 Itaoui v Reg [2005] NSWCCA 415 R v Shanks [2002] NSWCCA 438 R v Peckham [2003] NSWCCA 293

PARTIES: John Bain Regina

FILE NUMBER(S): CCA 2005/1617

COUNSEL: P. Barrett - Crown G. Bashir - Appellant

SOLICITORS: S. Kavanagh - Crown S. O'Connor - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/0668

LOWER COURT JUDICIAL OFFICER: Phegan DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/1617

SULLY J ADAMS J 24 March 2006

John Douglas BAIN v REGINA Judgment

Introduction

1 SULLY J: In August 2004 the applicant stood trial in the Parramatta District Court before his Honour Judge Phegan and a jury. The applicant was so tried upon a charge of robbery while armed with a shotgun. Such an offence contravenes section 97(2) of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of imprisonment for 25 years. On 25 August 2004 the jury found the applicant guilty as charged. On 3 December 2004 the applicant was sentenced to imprisonment for a non-parole period of 6 years 4 months with a balance of term of 2 years 8 months. The total sentence was, therefore, one of imprisonment for 9 years. 2 The applicant now seeks leave to appeal against sentence. There are five notified grounds. It will be convenient to deal with them separately after having noted the general facts of the case.