Citation: Regina v Fraser [1999] NSWCCA 212
Court: Court of Criminal Appeal, New South Wales
Date: 19 July 1999
Judge(s): Smart AJ; Studdert J
Background
The appellant was a 23-year-old man who, together with a co-accused, robbed a pharmacy at Summer Hill on 26 October 1998. The pair took $180 in cash from the till after demanding money from the attendant. A possession of cannabis offence was also taken into account at sentencing.
The appellant pleaded guilty at the first opportunity, made a full confession to police almost immediately upon questioning, and was found by the sentencing judge to be genuinely remorseful. He had a limited criminal history, the more serious entries of which dated from his juvenile years. Positive subjective features included a supportive former employer willing to re-hire him and evidence of active rehabilitation efforts.
The District Court imposed a minimum term of twelve months and an additional term of eighteen months for the robbery. The appellant sought leave to appeal on the grounds that the sentence was excessive, citing errors in the legal principle applied and a parity argument relative to his co-accused's sentence.
Legal Issues
- Whether the sentencing judge overstated the applicable legal principle by suggesting a full-time custodial sentence is required in all robbery cases unless exceptional circumstances exist
- Whether the sentence was manifestly excessive when measured against the appellant's subjective features
- Whether the principle of parity was correctly applied, given the significantly greater criminality of the co-accused
Decision
The Court of Criminal Appeal found that the sentencing judge had slightly overstated the applicable principle. While armed robbery and robbery with circumstances of aggravation do require a full-time custodial sentence absent exceptional circumstances, the Court clarified that a plain robbery offence occupies a less serious category. Where a robbery falls at the lower end of the range and compelling subjective features exist, a full-time custodial sentence is not invariably required.
On the parity question, the Court noted the difficulties arising from the sentencing judge not having access to the remarks on sentence of the judge who dealt with the co-accused. The co-accused had committed two serious armed robberies involving a knife, had offended while on bail, and had less favourable subjective circumstances overall. Given this markedly greater criminality, the Court considered the appellant warranted a minimum term well under half that imposed on the co-accused.
The Court accepted that some custodial sentence was appropriate in the circumstances of this case. However, having identified error in the application of the relevant principle and finding the minimum term excessive by comparison with the co-accused's sentence, it proceeded to re-sentence the appellant. The full term was left unchanged, but the minimum term was reduced from twelve months to nine months.
Orders Made
- Leave to appeal granted
- Appeal allowed
- In lieu of the original sentence, the appellant was sentenced to a minimum term of nine months commencing 26 October 1998 and expiring 25 July 1999, and an additional term of twenty-one months commencing 26 July 1999 and expiring 25 April 2001
Key Takeaways
- The Court of Criminal Appeal clarified that while robbery generally attracts a full-time custodial sentence, the strict "exceptional circumstances" rule applies to armed robbery and robbery with circumstances of aggravation, not necessarily to all robbery offences at the lower end of the range.
- Where a robbery falls at the bottom of the sentencing range and compelling subjective features are present, a full-time custodial sentence may not always be required, though it remained appropriate on the facts of this case.
- Overstating the applicable legal principle constitutes a sentencing error that permits the appellate court to re-sentence, even where the Crown argues the resulting sentence may not have differed.
- Applying parity principles requires a careful comparison of both the overall criminality and the subjective features of co-offenders; an appellant with far less serious conduct and more favourable personal circumstances would ordinarily receive a minimum term well below half that of a co-accused with a significantly worse profile.
- The absence of the co-sentencing judge's remarks on sentence placed the sentencing court at a practical disadvantage when assessing parity, a difficulty the Court of Criminal Appeal noted as a recurring concern.
Legislation and Cases Referenced
Legislation: None cited in the judgment.
Cases: None cited in the judgment.
(The Court's references to judicial principle were stated as general propositions rather than by citation to specific authorities.)