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2
Court of Criminal Appeal 2 August 1999

Regina v CHMAIT

[1999] NSWCCA 217

Also reported as 108 A Crim R 218
Assault & violenceTheft & property
CROWN APPEAL SENTENCE MANIFESTY INADEQUATE ROBBERY IN COMPANY

Citation: Regina v CHMAIT [1999] NSWCCA 217
Court: NSW Court of Criminal Appeal
Date: 2 August 1999
Judge(s): Newman J, Sperling J, Greg James J

Background

The respondent pleaded guilty in the District Court to robbery in company under s 97 of the Crimes Act 1900, an offence carrying a maximum penalty of 20 years' penal servitude. The offence involved the respondent and a co-offender targeting a young woman depositing a night wallet at a bank ATM in Penrith. They pushed her to the ground, seized the wallet containing just over $1,000, and fled, only to be apprehended by nearby council workers. The property was recovered.

District Court Judge Payne sentenced the respondent to a head sentence of two years and nine months, structured as a minimum term of six months and an additional term of two years and three months. Her Honour also found special circumstances to justify that division, but did not give reasons for that finding. The respondent had asked for three further offences to be taken into account on a Form 1, including a serious break, enter and steal.

The Crown appealed, arguing the sentence was manifestly inadequate.

  • Whether the minimum term of six months for robbery in company was manifestly inadequate in all the circumstances.
  • Whether the sentencing judge erred by failing to give reasons for her finding of special circumstances.
  • Whether the Court of Criminal Appeal should exercise its discretion to decline to intervene, given the minimum term was due to expire approximately 12 days after the hearing.

Decision

The Court found that the six-month minimum term was manifestly inadequate. Judicial Commission statistics confirmed the term sat at the very bottom of the sentencing range for robbery in company. The Court emphasised that both the full head sentence and the minimum term must reflect the objective criminality of the offence, citing R v Hampton and R v Bloomfield.

The primary offence was described as serious: it involved a physical assault on a defenceless woman alone at night, which the evidence showed was a terrifying experience for her. The Form 1 matters, particularly the break, enter and steal, added further weight. The respondent had also been released from an earlier custodial sentence only months before committing these offences.

On the special circumstances question, the Court accepted that the sentencing judge erred by not identifying her reasons, but found that the error was not determinative. The respondent's steps toward drug rehabilitation, his wish to learn a trade, and his supportive family relationships provided a sound basis on which special circumstances could have been found.

The Court declined to exercise its discretion to withhold intervention despite the imminent expiry of the minimum term. Given the manifest inadequacy of the sentence, the Court considered intervention necessary, while noting it would not disturb the overall head sentence of two years and nine months.

Orders Made

  • The minimum term and additional term imposed by her Honour Payne DCJ were quashed.
  • In substitution, the respondent was sentenced to a minimum term of 18 months' penal servitude, commencing 15 February 1999 and expiring 14 August 2000.
  • An additional term of one year and three months was imposed, commencing 15 August 2000 and expiring 14 November 2001.
  • Special circumstances were found and recorded.

Key Takeaways

  • Both the minimum term and the total head sentence must adequately reflect the objective seriousness of the offence. A minimum term that falls at the very bottom of the sentencing range, without justification, is liable to be set aside as manifestly inadequate.
  • Robbery in company involving a physical assault on a vulnerable victim in a public place at night has consistently been treated by the Court of Criminal Appeal as a serious offence warranting significant punishment.
  • A sentencing judge who finds special circumstances under the Sentencing Act must give reasons for that finding. Failing to do so constitutes error, even where the facts on record could have supported such a finding.
  • The Court of Criminal Appeal may still intervene to correct a manifestly inadequate sentence even when the minimum term is close to expiry, provided the inadequacy is sufficiently serious.
  • A late plea of guilty entitles an offender to a degree of leniency, but that leniency has limits and cannot produce a sentence that fails to reflect the gravity of the conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97 (robbery in company)
- Sentencing Act (NSW), s 5 (special circumstances)

Cases
- R v Ranse, CCA, unreported, 8 August 1994
- R v France, CCA, unreported, 9 July 1992
- R v Bradley, CCA, unreported, 26 October 1993
- R v Murray, CCA, unreported, 13 December 1993
- R v Hampton (1998) 44 NSWLR 729
- R v Bloomfield (1998) 44 NSWLR 734