Citation: R v Baker [1999] NSWCCA 150
Court: Court of Criminal Appeal, New South Wales
Date: 11 June 1999
Judge(s): Grove J; Carruthers AJ
Background
The appellant was convicted in the Newcastle District Court of one count of armed robbery under s 97(1) of the Crimes Act 1900, with five further matters taken into account on a schedule including obtain benefit by deception, goods in custody, two counts of break, enter and steal, and two counts of assault. The offences arose from a deeply serious incident in which the appellant, affected by heroin, entered the home of an 89-year-old man with severely impaired vision and hearing, threatened him with a knife taken from his own kitchen, and stole cash, his passbook, and a withdrawal form. The victim suffered a significant abrasion and was subjected to continuing threats even after the offence.
The sentencing judge, Judge Job QC in the District Court, imposed a minimum term of two years and four months penal servitude, with an additional term of nine months. The judge expressly considered but declined to find special circumstances that would have altered the ratio of minimum to additional term. The appellant was also separately sentenced to a fixed term of 12 months for breaching a recognisance arising from the subject offences.
Before sentencing, the appellant had spent 12 weeks at a residential drug rehabilitation programme at Selah Farm, where a drug counsellor gave evidence she was progressing well. The sentence necessarily disrupted that rehabilitation. The appellant sought leave to appeal on the ground that the sentence was too severe.
Legal Issues
- Whether the sentencing judge erred in declining to find special circumstances under s 5(2) of the Sentencing Act 1989, which permits a court to vary the standard one-third ratio between additional and minimum term
- Whether time spent in quasi-custody at a residential rehabilitation facility (Selah Farm) ought to have been taken into account in the same way as time spent at Odyssey House in comparable cases
- Whether, taken together, the drug rehabilitation progress, time in quasi-custody, and other circumstances warranted a reduction in the minimum term or an increase in the additional term
Decision
The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Carruthers AJ, writing the principal judgment, found that the overall sentence was not manifestly excessive and that the sentencing judge's approach was well within the proper exercise of his discretion given the high degree of criminality involved.
On the question of special circumstances, the Court noted the sentencing judge had expressly turned his mind to the issue and deliberately declined to find them. That was a permissible outcome: the existence of circumstances potentially capable of supporting a finding of special circumstances does not compel such a finding. The judge was entitled to conclude that even if special circumstances existed in principle, the particular facts did not require him to extend the additional term beyond the standard ratio.
As to the time spent at Selah Farm, Carruthers AJ observed that quasi-custody arrangements are not limited to placements at Odyssey House (as some earlier decisions had examined), and that time at comparable residential rehabilitation facilities could in principle be recognised. However, the Court expressed doubt that the Selah Farm period had been raised before the sentencing judge. Even accepting that it should have been taken into account, the Court concluded that treating 50 percent of a 12-week residential period as mitigating in the context of this overall sentence would have been, at most, a de minimis adjustment.
Carruthers AJ acknowledged the rarity and value of demonstrated rehabilitation before the court, expressing genuine regret that the appeal nonetheless had to be dismissed. He observed that the Court's responsibility was to apply the relevant legal principles to the evidence, and on that basis no error in the sentence had been established.
Orders Made
- Leave to appeal against sentence granted
- Appeal dismissed
Key Takeaways
- A sentencing court is not obliged to make a finding of special circumstances merely because circumstances exist that are capable of supporting one; the discretion remains with the sentencing judge even where relevant factors are present.
- Quasi-custody arrangements are not confined to placements at Odyssey House. Time spent at other residential rehabilitation facilities may, in principle, be recognised in the same way, though the weight given to any such period depends on the facts of the case.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that where an overall sentence is within the proper sentencing range for serious offences, a modest mitigating factor that was likely not raised below will not be sufficient to disturb that sentence.
- No error was established in the sentencing judge's refusal to find special circumstances, where the judge had expressly considered the issue and given reasons for his conclusion.
- The seriousness of the underlying offending, including the targeting of a vulnerable elderly victim and the use of a weapon, was central to the Court's conclusion that the minimum term imposed was appropriate and not amenable to reduction.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1) (armed robbery)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances and ratio of minimum to additional term)
Cases:
- Fisher (CCA, unreported, 18 September 1998)
- Eastaway (CCA, unreported, 19 May 1998)
- Cartwright (1989) 17 NSWLR 243 (at 258-259)
- Douglas (CCA, unreported, 4 March 1997)
- Hampton (CCA, unreported, 25 June 1998)
- Morrisey (CCA, unreported, 15 July 1994)
- McDonald (CCA, unreported, 12 October 1998)
- GDR (1994) 35 NSWLR 376