Citation: Regina v Tawake [1999] NSWCCA 147
Court: New South Wales Court of Criminal Appeal
Date: 7 June 1999
Judge(s): Grove J; Carruthers AJ
Background
The applicant pleaded guilty in the Liverpool District Court to robbery in company under s 97 of the Crimes Act, an offence carrying a maximum penalty of twenty years penal servitude. The offence occurred on 30 September 1997, when he and two others entered a video shop in Kogarah armed with a handgun and a knife. An employee was forced to attempt to open a safe, had an electrical cord tied around his neck, was pushed to the ground, and was kicked in the chest. The applicant was identified through a fingerprint found on a video recording he had handled during a preparatory phase of the offence.
The applicant had prior criminal involvement. Approximately nine months before the video shop robbery, he had acted as a lookout during a bank theft on 17 January 1997. He was charged and pleaded guilty to larceny and aiding and abetting a robbery arising from that earlier incident, and was placed on bail and ultimately received a community service order for those matters.
Critically, the video shop robbery was committed while the applicant was on bail in relation to the earlier bank offences, approximately one month before he was due to appear in court to be sentenced for them. O'Reilly DCJ sentenced him to four years penal servitude (a minimum term of three years and an additional term of one year) and cancelled the earlier community service order. The applicant sought leave to appeal on the ground that the sentence was excessive.
Legal Issues
- Whether the sentence of four years penal servitude for robbery in company was within the proper range of sentencing discretion, having regard to the circumstances of the offence and the applicant's personal circumstances
- Whether the applicant's personal submissions, including his inability to speak freely to the Probation and Parole office during the preparation of the pre-sentence report, provided a sufficient basis for the Court of Criminal Appeal to intervene
Decision
Grove J noted that the facts of the offence plainly placed it in the category of serious criminal conduct. The use of multiple weapons, including a firearm and a knife, combined with the physical treatment of the victim, pointed strongly toward a significant custodial sentence. The Court has consistently regarded the commission of offences involving such weapons as a matter of serious concern.
The commission of the offence while on bail was treated as an additional aggravating factor, a circumstance O'Reilly DCJ had expressly taken into account. Grove J observed that, given these factors, the sentence imposed was not only within the range of sound sentencing discretion but could reasonably be described as lenient.
The applicant's personal submissions, including statements made in his letter and in person about having learned his lesson and wanting to support his family, were acknowledged. However, Grove J held that such matters were relevant to mitigation at first instance, not to the question of appellate error. The Court of Criminal Appeal's jurisdiction to intervene requires demonstration of error by the sentencing judge, and the applicant had not established any such error.
Orders Made
- Leave to appeal granted
- Appeal dismissed
- Community service order cancellation (made by the sentencing court) left undisturbed
Key Takeaways
- The Court of Criminal Appeal confirmed that its jurisdiction is strictly one of error correction: it may only intervene where the applicant demonstrates that the sentencing judge made an error in approach or conclusion, not simply to consider fresh or more sympathetic personal circumstances.
- Committing an offence while on bail is a recognised aggravating factor in sentencing, and the Court treated this as a significant element supporting the sentence imposed.
- Under the sentencing framework applicable at the time, a four-year total sentence for robbery in company, divided into a three-year minimum and one-year additional term, was held to fall within the range of sound sentencing discretion for an offence carrying a maximum of twenty years.
- Personal expressions of remorse and rehabilitation, while commendable, carry weight in mitigation at first instance proceedings rather than on appeal, where the focus is on whether the original sentencing exercise miscarried.
- In dismissing the appeal, the Court also implicitly confirmed that the cancellation of the prior community service order was an appropriate response to the commission of a further serious offence while on bail.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 97 (robbery in company; maximum penalty twenty years penal servitude)
- Sentencing Act (NSW), s 5(2) (minimum and additional term sentencing structure)
Cases cited: None cited in the judgment or metadata.