REGINA v. FRANKS [2005] NSWCCA 196

REGINA v. FRANKS [2005] NSWCCA 196

The sentencing judge erred by having regard to threatened violence as an aggravating factor in relation to both the s.97(2) robbery offence and the s.33B(1)(a) offence, although that factor was an element of each offence. Those errors influenced the sentences. A less severe sentence was warranted in law, requiring the sentences for those two offences to be quashed and reduced by six months each.

Jurisdiction
Australia
Judgment Date
20 May 2005
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence From the District Court of New South Wales
Outcome
Leave to appeal granted; appeal granted in part; sentences for the offences under s.33B(1)(a) and s.97(2), Crimes Act 1900 quashed and reduced.
Legal Topics
['appeal Against Sentence' 'aggravating Factors' 'elements of Offence' 'manifestly Excessive Sentence' 'henry Guideline' 'armed Robbery' 'threatening to Use Firearm to Avoid Apprehension']
['criminal Law' 'sentencing'] ['appeal Against Sentence' 'aggravating Factors' 'elements of Offence' 'manifestly Excessive Sentence' 'henry Guideline' 'armed Robbery' 'threatening to Use Firearm to Avoid Apprehension']

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal Against Sentence From the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the sentencing judge erroneously took into account the threatened use of violence as an aggravating factor for the offence under s.97(2), Crimes Act 1900 when it was an element of the offence.' 'Whether the sentencing judge erroneously took into account the threat of violence as an aggravating factor for the offence under s.33B(1)(a), Crimes Act 1900 when it was an element of the offence.' 'Whether the sentence imposed for the offence under s.33B(1)(a), Crimes Act 1900 was manifestly excessive.' 'Whether the sentence imposed for the offence under s.97(2), Crimes Act 1900 was manifestly excessive.' 'Whether the sentencing judge misapplied the Henry guideline as a starting point or standard.']

Ratio Decidendi

The sentencing judge erred by having regard to threatened violence as an aggravating factor in relation to both the s.97(2) robbery offence and the s.33B(1)(a) offence, although that factor was an element of each offence. Those errors influenced the sentences. A less severe sentence was warranted in law, requiring the sentences for those two offences to be quashed and reduced by six months each.

Court Disposition

Leave to appeal granted; appeal granted in part; sentences for the offences under s.33B(1)(a) and s.97(2), Crimes Act 1900 quashed and reduced.

Orders

  • ['Leave to appeal be granted.' 'Appeal granted, in part.' 'The sentence of four years imprisonment from 6 June 2003 to 5 June 2007 with respect to the offence under s.33B(1)(a), Crimes Act 1900 be quashed.' 'In respect of the offence under s.33B(1)(a), Crimes Act 1900, a fixed term of three and a half years...