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8
Court of Criminal Appeal 27 August 1999

Regina v Cook

[1999] NSWCCA 234

Assault & violenceTheft & property
CRIMINAL LAW ROBBERY AIDING AND ABETTING ATTEMPTED ROBBERY ERROR AS TO MAXIMUM APPLICABLE SENTENCE S5(2) SENTENCING ACT 1989 SENTENCE BACKDATED

Citation: Regina v Cook [1999] NSWCCA 234
Court: Court of Criminal Appeal, New South Wales
Date: 27 August 1999
Judge(s): Studdert J, Simpson J

Background

The appellant pleaded guilty in the District Court on 10 September 1998 to three counts: robbery, aiding and abetting an attempted robbery, and attempting to use an offensive weapon to prevent lawful apprehension. All offences arose from a single series of events on 29 March 1998, during which the appellant and a co-accused committed two bag-snatching offences in inner Sydney before being pursued by police in a stolen vehicle.

The appellant also asked that four additional offences be taken into account on a Form 1, including dangerous driving and driving unlicensed. He had been in pre-sentence custody for more than eight months before being sentenced by Judge Mahoney in the District Court on 11 December 1998.

The District Court imposed concurrent sentences on the first two counts, with a cumulative sentence on the third, producing combined minimum terms of six years, eight months and twelve days when the pre-sentence custody was factored in. The appellant sought leave to appeal those sentences to the Court of Criminal Appeal.

  • Whether the sentencing judge applied the wrong maximum penalty for one of the offences, affecting the sentencing exercise
  • Whether the judge erred in refusing to find special circumstances under s 5(2) of the Sentencing Act 1989, which would have allowed departure from the statutory ratio between minimum and additional terms
  • Whether the sentences should have been backdated to the commencement of the appellant's pre-sentence custody rather than the date of sentencing
  • Whether mathematical errors in the dates specified in the original sentences infected the entire sentencing structure

Decision

Simpson J (with whom Studdert J agreed) found that the sentencing exercise had miscarried in several respects, requiring the sentences to be quashed and the appellant re-sentenced.

First, the sentencing judge had applied an incorrect maximum penalty to one of the counts. This was a foundational error that undermined the overall sentence structure.

Second, the judge had wrongly declined to find special circumstances under s 5(2) of the Sentencing Act 1989. The combination of accumulated sentences arising from a single episode committed within a few hours, together with the resulting imbalance between the minimum and additional terms, made it not properly open to the judge to conclude otherwise. Accumulation does not automatically give rise to a finding of special circumstances, but in this case all the circumstances pointed to such a finding.

Third, the sentences should have been backdated to 29 March 1998, the date the appellant's continuous pre-sentence custody commenced. The Court reaffirmed that, absent exceptional circumstances, sentences should be backdated to the start of the custody referable to the relevant offences. No exceptional circumstances existed here to justify the departure.

Orders Made

  • Leave to appeal sentences granted
  • Appeals allowed; each sentence quashed
  • In lieu of the original sentences, on each count and taking into account the Form 1 offences, the appellant was sentenced to a total term of penal servitude for six years, comprising a minimum term of three and a half years commencing 29 March 1998 and expiring 28 September 2001, and an additional term of two and a half years commencing 29 September 2001 and expiring 28 March 2004

Key Takeaways

  • Applying the wrong maximum penalty for a charged offence is a material error that can vitiate the entire sentencing exercise, warranting intervention by the Court of Criminal Appeal.
  • Under s 5(2) of the Sentencing Act 1989, a finding of special circumstances may be required where accumulated sentences arising from a single episode produce a significant imbalance between minimum and additional terms, even though accumulation does not automatically trigger such a finding.
  • The Court of Criminal Appeal confirmed the principle from R v Close (1992) 31 NSWLR 743 that sentences should ordinarily be backdated to the commencement of continuous pre-sentence custody referable to the offences, with departure permitted only in exceptional circumstances.
  • Mathematical errors in the specification of sentence commencement and expiry dates, even if minor on their face, can infect the entire sentencing structure and must be corrected.
  • Where multiple errors are found in a sentencing exercise, the appellate court will quash the original sentences in their entirety and re-sentence the offender rather than make piecemeal corrections.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(a), 94, 344A, 346
- Criminal Procedure Act 1986 (NSW), s 21
- Sentencing Act 1989 (NSW), s 5(2)

Cases
- R v Close (1992) 31 NSWLR 743
- R v Fernando (1992) 76 A Crim R 58
- R v Hickey, unreported, NSWCCA, 27 September 1994
- R v Kingsbeer & Zanze, unreported, NSWCCA, 11 June 1997
- R v Leon, unreported, NSWCCA, 13 November 1994
- R v Parker & Parker, unreported, NSWCCA, 28 August 1996
- R v Simpson (1992) 61 A Crim R 58