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5
Court of Criminal Appeal 12 May 1999

REGINA v JENKINS

[1999] NSWCCA 110

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCING APPROPRIATE SENTENCE

Citation: [1999] NSWCCA 110
Court: New South Wales Court of Criminal Appeal
Date: 12 May 1999
Judges: Spigelman CJ; Wood CJ at CL; Newman J; Hulme J; Simpson J

Background

The appellant pleaded guilty in the District Court at Dubbo to a single charge of assault with intent to rob whilst armed, under s 97(1) of the Crimes Act 1900 (NSW). The offence involved the appellant approaching a lone shop assistant from behind, holding a knife to her ribs, and demanding money from the till. The attempted robbery was unsuccessful, and the appellant left the store without obtaining any money.

The sentencing judge at first instance imposed a total term of four years penal servitude, comprising a minimum term of three years and an additional term of one year. The judge also directed that the appellant be released on parole on a specified date, subject to conditions including supervision by the Probation and Parole Service and compliance with recommended medical or psychiatric treatment.

The appellant sought leave to appeal against the severity of the sentence, arguing three errors in the sentencing process.

  • Whether the sentencing judge incorrectly identified the maximum penalty for the offence under s 97(1) of the Crimes Act 1900.
  • Whether the sentencing judge made an erroneous finding of fact regarding the appellant's reason for changing his shirt after the offence.
  • Whether the sentence imposed was manifestly excessive.
  • Whether the sentencing judge had power to direct release on parole on a specified date and to impose conditions of release, in circumstances where the total sentence exceeded three years.

Decision

Simpson J (with whose reasoning the majority agreed on the errors) identified three errors in the sentencing process. First, the sentencing judge misapprehended the maximum penalty prescribed for the offence. Second, the judge proceeded on a wrong factual basis concerning the appellant's change of clothing after the robbery, treating the shirt change as more sinister than the evidence supported. Third, these errors resulted in a sentence that was manifestly excessive.

On the parole order, Simpson J held that the direction for release on parole on a specified date, and the imposition of parole conditions, were beyond the sentencing judge's power. Section 24(1) of the Sentencing Act 1989 requires a judge to order release on parole at the end of a minimum term only where the total sentence is three years or less. No equivalent power exists for sentences exceeding three years. Because the total sentence of four years fell outside that provision, the judge had no authority to direct parole release or attach conditions to it.

Simpson J further observed that the conditions imposed appeared directed at the appellant's emotional well-being and social circumstances, rather than at rehabilitation or the prevention of further offending. Those were not legitimate purposes for a parole order or for supervision by the Probation and Parole Service.

The majority of the Court agreed with Simpson J on the identified errors but divided on the appropriate re-sentence. Simpson J proposed a fixed term of fifteen months. Spigelman CJ, with whom Wood CJ at CL, Newman J and Hulme J agreed, took the view that the objective gravity of the offence was high, given the nature of the weapon (a boning knife from an abattoir, described by the sentencing judge as "a nasty looking weapon"), and that a fixed term of two years was appropriate.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; original sentence quashed.
  • The appellant sentenced to a fixed term of penal servitude of twenty-four months.

Key Takeaways

  • Under s 24(1) of the Sentencing Act 1989, a sentencing court's power to direct release on parole on a specified date applies only where the total sentence of imprisonment is three years or less; no such power exists for sentences exceeding that threshold.
  • A direction that an offender comply with supervision, counselling, or treatment as a parole condition is only a legitimate exercise of judicial power where those measures are directed at rehabilitation or reducing the risk of reoffending, not at addressing a judge's broader concerns about an offender's lifestyle or emotional well-being.
  • Where a sentencing judge misidentifies the applicable maximum penalty, that error enlivens the Court of Criminal Appeal's discretion to intervene and re-sentence, even if the sentence would not otherwise be characterised as manifestly excessive on its own.
  • The Court of Criminal Appeal confirmed that the nature and character of a weapon used in an armed robbery is a significant factor in assessing objective criminality for sentencing purposes.
  • In re-sentencing, the majority placed greater weight on objective gravity than the minority proposed, resulting in a fixed term of two years rather than the fifteen months proposed by Simpson J, illustrating that the court's assessment of objective criminality can be decisive in fixing the substituted sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 97(1) (assault with intent to rob whilst armed)
- Sentencing Act 1989 (NSW), s 24(1) (direction for release on parole); s 5(2)

Cases:
- No specific cases are identified in the portions of the judgment provided.