Citation: R v Bennett [1999] NSWCCA 102
Court: New South Wales Court of Criminal Appeal
Date: 24 May 1999
Judge(s): Barr J; McInerney AJ
Background
The applicant was a 22-year-old woman sentenced in the District Court following a guilty plea to armed robbery and assault. The offences occurred on 19 March 1997 in Darlinghurst, where the applicant and a male companion used a blood-filled syringe, which they claimed contained HIV-positive blood, to threaten members of the public and steal cash. The applicant personally threatened victims and, after her arrest, made intimidating comments to the victims within earshot.
Judge Kirkham sentenced the applicant to six years' penal servitude (minimum term three years, additional term three years) for the armed robbery, and a concurrent fixed term of six months for the assault. His Honour also took into account two further offences under s 21 of the Criminal Procedure Act: an attempted armed robbery and possession of the offensive implement (the syringe).
The applicant appeared in person before the Court of Criminal Appeal seeking leave to appeal, arguing the sentences were manifestly excessive given it was her first term of imprisonment and that comparable cases had attracted substantially shorter sentences.
Legal Issues
- Whether the sentences imposed by Judge Kirkham fell outside the proper range of sentencing discretion, such that leave to appeal should be granted
- Whether the applicant's youth and first-time imprisonment status warranted a reduction in sentence
- Whether post-sentence rehabilitation and hardship in custody could be taken into account on a sentence appeal
Decision
The Court of Criminal Appeal found that the sentences did not fall outside the proper range of sentencing discretion. Barr J noted the maximum penalty for armed robbery was 20 years' penal servitude, and that the offences, together with those taken into account, were of a very serious kind warranting a substantial sentence.
The sentencing judge had already considered the applicant's youth and the fact that this was her first custodial sentence. Those factors had been weighed against the seriousness of the offences, including the aggravating circumstance of the applicant threatening the victims after her arrest. No error in his Honour's approach was identified.
The Court acknowledged the applicant's evidence of a difficult upbringing and her post-sentence rehabilitation progress, describing these as encouraging. However, Barr J confirmed that such matters could not be taken into account on appeal, as the appellate court is confined to assessing error by reference only to what was before the sentencing judge at the time of sentence.
McInerney AJ agreed with Barr J without additional reasons.
Orders Made
- Leave to appeal against sentence refused
Key Takeaways
- A Court of Criminal Appeal assessing a sentence appeal is confined to material that was before the sentencing judge; post-sentence rehabilitation and subsequent hardship in custody cannot be considered in determining whether sentencing error occurred.
- In dismissing the appeal, the Court confirmed that a six-year sentence for syringe-threat armed robbery, where multiple offences were taken into account, fell within the proper range of sentencing discretion given a maximum penalty of 20 years.
- Where a sentencing judge has already weighed youth and a first custodial sentence against the seriousness of the offending, an appellate court will not intervene merely because those factors were present.
- Aggravating conduct occurring at or near the time of arrest, such as threats directed at victims, is a legitimate consideration in sentencing.
- Under s 21 of the Criminal Procedure Act, a sentencing court may take into account additional admitted offences, which can inform the overall sentencing exercise without separate penalties being imposed for each.
Legislation and Cases Referenced
Legislation:
- s 21, Criminal Procedure Act (NSW)
Cases cited: None identified in the judgment or metadata.