Wilson v R; Barrie v R [2014] NSWCCA 150

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Wilson v R; Barrie v R [2014] NSWCCA 150 Hearing dates: 12 March 2014 Decision date: 13 August 2014 Before: Leeming JA at [1]; Button J at [2]; RS Hulme AJ at [3] Decision: In Mr Wilson's appeal, 2011/46417: (i) Grant leave to appeal against sentence; (ii) Allow the appeal; (iii) Quash the sentence imposed by Charteris DCJ on 11 October 2012. (iv) In respect of the offence of, on 14 September 2010, being armed with dangerous weapons and being in company, robbing Desmond Clarken of money the property of Vertigo Pty Ltd trading as the Petersham Inn Hotel, sentence him to imprisonment for a non-parole period of 5 years and 3 months commencing on 1 April 2011 and a balance of term of 2 years and 3 months commencing on 1 July 2016. (v) Record as the date when it appears to the Court that Mr Wilson shall be eligible for parole, 1 July 2016. In Mr Barrie's appeal, 2010/346956: (i) Grant leave to appeal against sentence; (ii) Allow the appeal; (iii) Quash the sentences imposed by Charteris DCJ on 11 October 2012. (iv) In respect of the offence of, on 25 August 2010, whilst armed with a dangerous weapon robbing Patricia Tselepi of property of the Newington Inn, sentence him to imprisonment for a non-parole period of 4 years and 6 months commencing on 18 December 2010, together with a further term of 3 years commencing on 18 June 2015. (v) In respect of the offence of, on 14 September 2010, whilst armed with a dangerous weapon robbing Desmond Clarken of property of Petersham Inn, sentence him to imprisonment for a non-parole period of 4 years and 9 months commencing on 18 September 2012, together with a further term of 3 years and 3 months commencing on 18 June 2017. (vi) Record as the date when it appears to the Court that Mr Barrie shall be eligible for parole, 18 June 2017. Catchwords: CRIMINAL LAW - leave to appeal against sentence - robbery whilst armed with a dangerous weapon and in company - whether applicants had justifiable sense of grievance given the disparity between their sentences and the sentence imposed on a co-offender - where the applicant had served time on bail in residential rehabilitation facilities - where the applicant had not complied with some of the bail conditions imposed - whether the sentencing judge erred in failing to take into account the time served on bail given the restrictive nature of the bail conditions - whether the sentencing judge failed to give appropriate weight to the subjective circumstances of the applicant - whether the sentencing judge had proper regard to the totality principle in accumulating the sentences imposed - consideration of subjective circumstances of each co-offender - consideration of Form 1 offences taken into account - whether sentences manifestly excessive Legislation Cited: Crimes Act 1900 (NSW), s 97(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 24 Cases Cited: Bonett v R [2013] NSWCCA 234 R v Campbell [1999] NSWCCA 76 R v Delaney [2003] NSWCCA 342 R v Eastway (unreported, NSWCCA, 19 May 1992) R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Merrin [2007] NSWCCA 255; 174 A Crim R 100 R v Spiteri [1999] NSWCCA 3 Renshaw v R [2012] NSWCCA 91 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 Category: Principal judgment Parties: Phillip Wilson (Applicant) Scott Barrie (Applicant) Crown (Respondent) Representation: Counsel: W Hunt (Counsel for Barrie) D O'Neil (Counsel for Wilson) T Smith (Crown) Solicitors: Legal Aid NSW (Applicants) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/46417; 2010/346956 Decision under appeal Date of Decision: 2012-10-11 00:00:00 Before: Charteris DCJ File Number(s): 2011/46417; 2010/346956