Citation: [1999] NSWCCA 106
Court: Court of Criminal Appeal, New South Wales
Date: 12 May 1999
Judges: Spigelman CJ; Wood CJ at CL; Newman J; Hulme J; Simpson J
Background
Two respondents were sentenced in the Parramatta District Court on 19 August 1998 after pleading guilty to a series of serious offences. The first respondent was convicted of break, enter and steal, armed robbery, and additional matters taken into account on Form 2. The second respondent was convicted of break, enter and steal, armed robbery under s 97(1) of the Crimes Act 1900, and robbery under s 94, together with a range of other matters taken into account.
The offending was serious. The armed robbery involved one respondent entering a late-night chemist shop while masked, threatening a 61-year-old pharmacist with a syringe filled with red liquid, grabbing him by the arm, and forcing him to empty the till. The break and enter involved the theft of jewellery worth approximately $30,000, and the robbery involved the violent snatching of a handbag from a 55-year-old woman on a public street.
The sentencing judge imposed what the Court of Criminal Appeal unanimously found to be manifestly inadequate sentences. The Director of Public Prosecutions brought Crown appeals under s 5D of the Criminal Appeal Act 1912 seeking resentencing of both respondents.
Legal Issues
- Whether the sentences imposed by Acting Judge Prowse were manifestly inadequate for offences of break, enter and steal, armed robbery, and robbery
- Whether the sentencing judge erred in principle by allowing his personal views about drug policy to influence the sentencing exercise
- Whether, even where a sentence is manifestly inadequate, the Court of Criminal Appeal retains a discretion to dismiss the Crown appeal
- How the principle of "double jeopardy" (the additional hardship on an offender of facing a second sentencing) should operate where both respondents had already been released from custody
Decision
The Court was unanimous that the sentencing judge had made errors of principle. Wood CJ at CL identified a central problem: the judge had made observations reflecting personal views about whether drug-affected offenders should be brought before the criminal courts at all, rather than treated as a socio-medical matter. Those views were held to be irrelevant and inappropriate to the sentencing exercise. The judge's duty was to reflect the legislative will expressed in the Crimes Act 1900, not to subvert it through personal policy preferences. This error was found to have undermined the entire sentencing exercise.
Despite this, the Court exercised its discretion to dismiss the Crown appeal against the first respondent entirely, and to allow only the Crown appeal relating to the armed robbery count in the case of the second respondent. The critical factor was the exceptional and genuine rehabilitation both men had achieved since their release. The Court was satisfied that returning either man to full-time custody would be unduly harsh in those circumstances.
For the second respondent, Simpson J (with whom the other members of the Court agreed on this point) substituted a sentence of five years penal servitude for the armed robbery, structured as a minimum term of one year commencing 14 February 1998 and an additional term of four years. Because the respondent had already served the minimum term and been released, this restructuring meant he remained subject to parole conditions rather than returning to custody. The Crown appeals concerning the robbery and break, enter and steal sentences were dismissed in the exercise of the Court's discretion, even though those sentences were also found to be inadequate.
Simpson J expressly noted that the decision turned on extraordinary circumstances and should not be treated as a precedent for other cases.
Orders Made
Kyroglou:
- Crown appeal dismissed
Tsoukatos:
- Crown appeal against sentence for armed robbery (s 97(1)): allowed; sentence substituted with penal servitude for five years, comprising a minimum term of one year commencing 14 February 1998 and expiring 13 February 1999, and an additional term of four years commencing 14 February 1999 and expiring 13 February 2003
- Crown appeal against sentence for break, enter and steal (s 112(1)): dismissed
- Crown appeal against sentence for robbery (s 94): dismissed
Key Takeaways
- A sentencing judge's personal views on drug policy, however sincerely held, are irrelevant to the sentencing exercise and constitute an error of principle if they influence the outcome; the judge's duty is to apply the law as declared by the legislature.
- Even where a Crown appeal is brought on the basis of manifest inadequacy and errors of principle are established, the Court of Criminal Appeal retains a discretion to dismiss the appeal rather than resentence the offender.
- Exceptional post-sentence rehabilitation, combined with the principle against double jeopardy (the added burden on an offender of being sentenced twice for the same conduct), can together justify the exercise of that discretion in the offender's favour.
- In dismissing two of the three Crown appeals against the second respondent, the Court acknowledged that the sentences for robbery and break, enter and steal were inadequate, yet still declined to intervene, demonstrating that the discretion to dismiss is not extinguished merely by a finding of inadequacy.
- The Court expressly limited the precedential value of its decision, noting that the circumstances were extraordinary and that the outcome should not be generalised to other sentencing appeals.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 94 (robbery), 97(1) (armed robbery), 112(1) (break, enter and steal), 117 (larceny)
- Criminal Appeal Act 1912 (NSW): s 5D (Crown appeals against sentence)
- Criminal Procedure Act 1986 (NSW): Form 2 (matters taken into account)
- Sentencing Act 1989 (NSW)
- Sentencing (General) Regulation 1996 (NSW): cl 10A (parole supervision limited to three years)
Cases cited: No specific cases were identified in the portions of the judgment provided.