Citation: Regina v Henry & Barber [1999] NSWCCA 107
Court: NSW Court of Criminal Appeal
Date: 12 May 1999
Judges: Spigelman CJ, Wood CJ at CL, Newman J, Hulme J, Simpson J
Background
Two co-offenders, Henry and Barber, had pleaded guilty to robbery in company under s 97(1) of the Crimes Act 1900 (NSW), arising from an armed robbery of a general store in Tamworth on 1 May 1998. Henry also faced a separate charge of armed robbery at a service station committed in March 1997. Both offences involved knives and a lone victim who was threatened and left in considerable fear.
Henry had been sentenced by Johnston ADCJ in the District Court to concurrent terms of penal servitude, each comprising an 18-month minimum term and a four-year additional term. Barber received a total of five years. The Crown appealed both sentences as manifestly inadequate, and the respondents cross-appealed certain aspects of their sentences.
Both offenders had prior criminal histories, and critically, both were on conditional liberty at the time the May 1998 robbery was committed. The sentencing had occurred against the backdrop of a Guideline Judgment for armed robbery, which the Court of Criminal Appeal was required to apply.
Legal Issues
- Whether the sentences imposed at first instance were manifestly inadequate, having regard to the armed robbery Guideline Judgment
- Whether the sentencing judge had erred by failing to give reasons for finding "special circumstances" under s 5(2) of the Sentencing Act 1989 (NSW), which permits an additional term exceeding one-third of the minimum term
- How the Pearce principle (requiring identifiable separate punishment for each offence) should interact with the principle of totality when sentencing for multiple offences
- Whether sentences should have been accumulated, given that both offenders were on conditional liberty at the time of the offence
- The proper approach to structuring minimum and additional terms following resentencing
Decision
The Court of Criminal Appeal allowed both Crown appeals. The sentences imposed at first instance were held to be manifestly inadequate when measured against the Guideline Judgment for armed robbery offences. The sentencing judge's failure to give reasons for finding special circumstances was itself a further error, given the statutory obligation to do so.
Simpson J, with whom the other members of the Court agreed, identified that the sentencing judge had improperly structured the minimum and additional terms. The four-year additional term vastly exceeded the one-third proportion ordinarily applicable, and no reasons had been provided to justify that departure. This error required the Court to resentence the offenders entirely.
The Court then grappled with the competing demands of the Pearce principle and totality. In Henry's case, the Pearce principle required that each offence attract its own identifiable sentence, with the second offence warranting a more severe penalty given the prior armed robbery. However, accumulating sentences of five and five-and-a-half years would have produced a total term grossly disproportionate to the overall criminality. The principle of totality prevailed, and the Crown's submission for accumulation was rejected.
Spigelman CJ noted, in partial qualification of Simpson J's reasoning, that the offenders' criminal histories and their commission of offences while on conditional liberty could, in his view, have justified sentences above the four to five year range indicated by the Guideline Judgment. The double jeopardy principle, however, applied to limit the extent of any increase on appeal, and the sentences ultimately imposed reflected that constraint.
Orders Made
Henry:
- Sentences imposed by Johnston ADCJ on 21 August 1998 quashed
- Resentenced in respect of each offence to penal servitude with a minimum term of 5 years commencing 2 May 1998 and expiring 1 May 2003, and an additional term of 2 years commencing 2 May 2003 and expiring 1 May 2005
- Eligible for parole on 2 May 2003
Barber:
- Sentence imposed by Johnston ADCJ on 21 August 1998 for robbery in company quashed
- Resentenced to penal servitude with a minimum term of 3 years commencing 1 May 1998 and expiring 30 April 2001, and an additional term of 2 years commencing 1 May 2001 and expiring 30 April 2003
- Sentence to be served concurrently with other sentences imposed on 21 August 1998
- Eligible for parole on 1 May 2001
Key Takeaways
- A sentencing judge who finds "special circumstances" under s 5(2) of the Sentencing Act 1989 is required to give reasons for that finding; failure to do so constitutes an error that may warrant resentencing on appeal.
- Under the Pearce principle, where an offender is being sentenced for multiple offences, each offence must attract an identifiable, separate penalty so that no offence is seen to go unpunished.
- The principle of totality can override arguments for accumulation, even where those arguments would otherwise have merit; a combined sentence grossly disproportionate to the total criminality is not appropriate.
- Commission of an offence while on conditional liberty is a significant aggravating factor that may justify departure from the range indicated in a Guideline Judgment.
- In allowing a Crown appeal that results in a substantially increased minimum term, the double jeopardy principle operates to temper the extent of that increase.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (robbery in company)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances and additional term)
- Criminal Procedure Act 1986 (NSW)
Cases:
- R v Pearce (the "Pearce principle" concerning separate, identifiable sentences for multiple offences)
- Armed Robbery Guideline Judgment (Court of Criminal Appeal, unreported, referred to throughout the decision)