Citation: Regina v Ah-See [1999] NSWCCA 175
Court: NSW Court of Criminal Appeal
Date: 30 June 1999
Judge(s): Bell J; Sully J (agreeing)
Background
The appellant was an Aboriginal man convicted by a jury in the District Court at Dubbo of armed robbery, after a three-day trial. The offence occurred at the Wellington Bowling Club on 4 September 1997, where he jumped the counter armed with a knife and seized cash from the till while the barmaid was put in real fear. He was detained by other patrons until police arrived.
Before trial, the appellant had pleaded not guilty to armed robbery but guilty to the alternative charge of robbery (without the element of being armed). The Crown did not accept that plea in discharge of the indictment, proceeded to trial, and the jury convicted on the armed robbery count. The District Court sentenced the appellant to seven years penal servitude, comprising a minimum term of four years and an additional term of three years, back-dated to the date he was taken into custody.
The appellant sought leave to appeal against the severity of that sentence on three grounds: that the sentencing judge failed to credit his guilty plea to the alternative charge; that insufficient allowance was made for time spent on remand; and that the overall sentence was excessive in all the circumstances.
Legal Issues
- Whether a guilty plea to an alternative count, not accepted by the Crown, required the sentencing judge to reduce the sentence ultimately imposed following conviction at trial on the primary count
- Whether the period spent on remand, beyond the back-dating of the sentence, warranted an additional discount
- Whether the overall sentence of seven years fell outside the range properly available to the sentencing judge in the exercise of his discretion
Decision
On the plea to the alternative charge, the Court held that section 439 of the Crimes Act 1900 (which requires a court to take into account a guilty plea and, if it does not reduce the sentence, to state reasons) applies only where a person is sentenced for an offence to which they pleaded guilty. Because the appellant was convicted at trial on the armed robbery count, not sentenced on the count to which he pleaded guilty, section 439 was not engaged. The sentencing judge's silence about the plea to the alternative count therefore disclosed no error.
On the remand argument, the Court noted that the sentence had already been back-dated to the date of custody. Citing its earlier decision in Regina v Bragias, the Court reasoned that it would be illogical to discount a sentence both for a guilty plea and separately for the stress of undergoing trial. The submission that remand conditions warranted a further reduction beyond back-dating was rejected.
On the question of overall severity, the Court acknowledged that seven years was undoubtedly a heavy sentence for an offence that was unpremeditated, committed under the influence of alcohol, and described even by the sentencing judge as amateurish. However, the sentencing judge had expressly applied the principles for sentencing Aboriginal offenders set out in Regina v Fernando, and that application was reflected in how the sentence was structured, including the departure from the standard minimum-to-total ratio under section 5(2) of the Sentencing Act 1989. The appellant was also subject to a good-behaviour recognisance for a supply-of-heroin conviction at the time of the offence.
The Court concluded that the sentence did not fall outside the range available to the sentencing judge and that no error had been demonstrated.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Section 439 of the Crimes Act 1900, which obliges a sentencing court to account for a guilty plea, applies only where the offender is sentenced on the count to which they pleaded guilty; a plea to an alternative count that was not accepted by the Crown does not attract that obligation when the offender is ultimately convicted at trial on the primary count.
- A guilty plea to a lesser charge may nonetheless be a relevant consideration at sentencing as a matter of general principle, even if section 439 is not directly engaged, but its absence from the sentencing remarks in these circumstances did not constitute error.
- Back-dating a sentence to the date of custody adequately reflects time spent on remand; no additional discount for the conditions of remand is required simply because an offender was not able to access programmes available to sentenced prisoners.
- The Fernando principles governing the sentencing of Aboriginal offenders can be applied through the structure and proportions of a sentence, not only through explicit reasoning, and their application is a relevant factor in appellate review.
- In dismissing the appeal, the Court of Criminal Appeal reaffirmed that an appellate court's task is to assess whether a sentence falls outside the range open to the sentencing judge, not to substitute its own view of the appropriate penalty.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 94, 439
- Sentencing Act 1989 (NSW), s 5(2)
Cases
- Regina v Winchester (1992) 58 A Crim R 345
- Regina v Bragias (1997) 92 A Crim R 330
- Regina v Fernando (1992) 76 A Crim R 58