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Court of Criminal Appeal 15 April 1999

R v Perrett

[1999] NSWCCA 115

Theft & property
SENTENCING TRIAL JUDGE'S DISCRETION MITIGATING FACTORS

Citation: R v Perrett [1999] NSWCCA 115
Court: New South Wales Court of Criminal Appeal
Date: 15 April 1999
Judge(s): Beazley JA, Simpson J, Bell J

Background

The respondent pleaded guilty to one count of robbery under s 58 of the Crimes Act 1900 (NSW), which carries a maximum penalty of 14 years penal servitude. The offence involved the respondent and a co-offender confronting a pizza delivery driver at a residential driveway at night. The co-offender demanded and took $120 in cash, physically pushing the victim to the ground, while the respondent stood approximately 10 metres away holding a cricket bat and wearing a balaclava.

The respondent surrendered himself to police approximately five weeks after the offence, participated cooperatively in a recorded interview, and expressed early remorse. He also repaid the full $120 taken in the robbery, despite having personally received only $50 of the proceeds.

At sentence, the District Court judge declined to impose a custodial sentence. Instead, he deferred passing sentence and ordered the respondent to enter a recognisance of $1,000 to be of good behaviour for three years. The Crown appealed, arguing the sentence was manifestly inadequate.

  • Whether robbery, as a matter of general principle, requires a custodial sentence in all but the most exceptional circumstances
  • Whether the sentencing judge erred by giving excessive weight to mitigating factors and insufficient weight to the objective gravity of the offence
  • Whether the particular mitigating factors in this case were sufficient to constitute "exceptional circumstances" warranting a non-custodial sentence
  • Whether, applying the principle of double jeopardy applicable to Crown appeals, the Court of Criminal Appeal should intervene

Decision

The Court of Criminal Appeal unanimously dismissed the Crown's appeal. Beazley JA, writing for the Court, acknowledged the well-established principle that robbery is an offence of the utmost gravity that ordinarily attracts a custodial sentence. Her Honour found, however, that the sentencing judge had recognised this principle and deliberately departed from it on the basis of the respondent's individual circumstances.

The Court held that the combination of mitigating factors in this case was sufficient to constitute "exceptional circumstances." Those factors included the respondent's youth, his early plea of guilty, his early expression of remorse, his full repayment of the stolen money (despite receiving only part of the proceeds), his good character (unchallenged), his stable employment, and the fact that he had not re-offended since the offence.

Beazley JA also emphasised that the objective criminality of the respondent's conduct was significantly less serious than in the leading cases where the custodial sentencing principle had been enunciated, such as R v Murray, R v Roberts and R v Kingsbeer. Sentencing principles developed in the context of serious offences must be applied with due regard to the specific facts of the case before the court, and care should be taken not to transpose those principles mechanically to less serious instances of the same offence type.

The Court further noted that sentencing statistics showed non-custodial sentences were imposed in approximately one-third of robbery cases involving offenders under 21 with no prior convictions, confirming the sentence was within range. When combined with the double jeopardy principle that applies to Crown appeals, the Court found no basis for intervention.

Orders Made

  • The Crown's appeal was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that robbery ordinarily requires a custodial sentence, but this is a principle of general application rather than an absolute rule, and non-custodial sentences remain available where exceptional circumstances are established.
  • A combination of mitigating factors, including youth, an early guilty plea, early remorse, full repayment of stolen proceeds, good character, and stable employment, was found collectively sufficient to constitute "exceptional circumstances" in this case.
  • Sentencing principles established in cases involving grave instances of an offence should not be applied mechanically to less serious examples of the same offence; the objective gravity of the specific conduct always remains a relevant consideration.
  • In dismissing the appeal, the Court reaffirmed that the principle of double jeopardy (meaning the additional hardship a successful Crown appeal imposes on an offender) is a material factor in deciding whether to intervene in a Crown sentence appeal.
  • Sentencing statistics, while of limited and generalised utility, were treated as relevant confirmation that the sentence imposed fell within an accepted range for the offender's profile.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 58 (robbery) and s 558 (recognisance)

Cases
- R v Murray (unreported, NSWCCA, 11 September 1986)
- R v Roberts & Ors (1994) 73 ACrimR 306
- R v Kingsbeer (unreported, NSWCCA, 29 July 1988)
- R v Thwaites (unreported, NSWCCA, 6 October 1993)
- R v Elliot (1983) ACrimR 238
- R v Iskander (unreported, NSWCCA, 22 July 1996)
- R v DRL (unreported, NSWCCA, 16 May 1997)
- R v Pham (1991) 55 ACrimR 128
- R v Dodd (1991) 57 ACrimR 349
- R v Moffitt (1990) 20 NSWLR 114