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Court of Criminal Appeal 7 June 1999

Regina v Collier

[1999] NSWCCA 137

DrugsTheft & property
APPEAL AGAINST SEVERITY OF SENTENCE ARMED ROBBERY LARCENY INTRAVENOUS DRUG ADDICTION PRIOR RECORD OF DRUG & DRUG RELATED OFFENCES

Citation: Regina v Collier [1999] NSWCCA 137
Court: NSW Court of Criminal Appeal
Date: 7 June 1999
Judge(s): Grove J; Carruthers AJ

Background

The applicant, a 24-year-old man with a lengthy history of intravenous drug addiction and prior drug-related convictions, pleaded guilty to armed robbery at a chemist in the Newcastle area. During the robbery, he threatened staff with a syringe containing a red fluid, claiming he would give them AIDS if they did not comply, and stole various pharmaceutical drugs. A related larceny offence was taken into account on a Form 1.

At sentencing in the Newcastle District Court, McGuire DCJ imposed a minimum term of one year and ten months, commencing from the date of arrest, followed by an additional term of two years and two months. The additional term significantly exceeded the statutory norm of one-third of the minimum term, reflecting the sentencing judge's deliberate emphasis on rehabilitation. His Honour also attached conditions to the anticipated parole order, requiring the applicant to undertake a residential drug rehabilitation program.

The applicant sought leave to appeal against the severity of the sentence, arguing that the structure of the sentence nonetheless failed to give adequate weight to his rehabilitation prospects.

  • Whether the sentencing judge gave sufficient weight to the applicant's rehabilitation needs when structuring the sentence
  • Whether the additional term was supported by adequate evidentiary basis, or should have been reduced to one-third of the minimum term
  • Whether McGuire DCJ had jurisdiction to impose conditions on the parole order

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Carruthers AJ found that the applicant's submissions fundamentally misconceived the sentencing task. Deterrence, not rehabilitation, plays the predominant role in sentencing for armed robbery offences under section 97 of the Crimes Act 1900, a principle confirmed by the Court as far back as 1984 in Lorenzo and Royal.

The Court observed that McGuire DCJ had in fact given rehabilitation the maximum emphasis available to him. The additional term of two years and two months against a minimum term of one year and ten months was described as "the most eloquent indication" that the sentencing judge had stretched the balance in the applicant's favour as far as the gravity of the offence and the need for deterrence permitted. Carruthers AJ noted the sentence was at the lower end of the available range.

On the question of the parole conditions, the Crown drew attention to the decision in R v Rainbow, which established that for sentences exceeding three years, the Parole Board alone holds the power to make a parole order. The sentencing judge therefore lacked jurisdiction to attach conditions to the parole order, though the Court acknowledged his Honour's intentions were plainly well-meaning.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Deterrence plays a predominant role in sentencing for armed robbery under section 97 of the Crimes Act 1900, and rehabilitation cannot be permitted to predominate in the sentencing calculus.
  • A sentencing court's extension of the additional term well beyond the statutory one-third norm (under section 5(2) of the Sentencing Act) can serve as a legitimate mechanism to maximise rehabilitation prospects, provided the minimum term still reflects the objective seriousness of the offence.
  • The Court of Criminal Appeal confirmed that for sentences exceeding three years in total, only the Parole Board has power to make a parole order, meaning a sentencing judge has no jurisdiction to attach conditions to such an order.
  • No error in sentencing principle was established merely because the sentence involved a period of full-time custody, even where the offender had demonstrated a desire to rehabilitate and had a drug-dependency background.
  • In dismissing the appeal, the Court characterised the sentence imposed at first instance as falling at the lower end of the available range for this category of offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1) (armed robbery, maximum 20 years penal servitude)
- Sentencing Act (NSW), s 5(2) (statutory relationship between minimum and additional terms)

Cases
- R v Rainbow (NSW CCA, unreported, 20 December 1996)
- R v Merritt (NSW CCA, unreported, 10 March 1999)
- Lorenzo and Royal (NSW CCA, unreported, 8 November 1984)