Citation: Regina v Flood [1999] NSWCCA 240
Court: NSW Court of Criminal Appeal
Date: 28 June 1999
Judge(s): Sully J; Bell J
Background
Two brothers appeared before the District Court at Coffs Harbour in June 1998, having each pleaded guilty to four related offences arising from a single incident. On 7 March 1998, they approached a 19-year-old in a public car park, forced him at knifepoint into the back of his parents' vehicle, and drove him to multiple locations over a significant period. During that time, they robbed him of cash, jewellery and bank card details while making repeated threats, including threatening to "carve him up and throw him in the bushes."
The sentencing judge characterised the conduct as "brazen and outrageous" and imposed, on the principal offence of armed robbery, penal servitude of six years with a minimum term of three years and six months. Concurrent fixed terms were imposed for the two motor vehicle stealing offences and the offence of detaining a person with intent to hold for advantage.
Both brothers sought leave to appeal the severity of their sentences, relying on two grounds of alleged legal error by the sentencing judge.
Legal Issues
- Whether the sentencing judge erred in law by treating the appellants' intoxication at the time of the offences as not constituting a mitigating factor.
- Whether any established error was sufficient to warrant this Court substituting a more lenient sentence under s 6 of the Criminal Appeal Act.
Decision
The appellants argued that the sentencing judge's statement, that it was "not a mitigating feature that they were alcohol-affected at the time," was contrary to established authority, particularly R v Coleman (1990) 47 ACrimR 306, which they said required intoxication to be treated as at least some mitigating factor.
Sully J rejected this submission. Reading the remarks on sentence as a whole, his Honour concluded the sentencing judge was conveying the principle articulated in R v Fletcher-Jones (1994) 75 ACrimR 381, namely that while intoxication may explain why an offence occurred, it does not licence criminal conduct. The statement was not, in context, a blanket exclusion of intoxication from any mitigating weight.
On the second ground, the Court found the sentences were not open to fair criticism. A law-abiding citizen had been targeted, detained at knifepoint, and robbed over a measurable period by two adults acting together. Sully J described the offences as serious infractions of public order warranting substantial punishment. No error warranting intervention had been made out.
Leave to appeal was granted in both cases given the significance of the sentences to the appellants, but the substantive appeals were dismissed.
Orders Made
- Leave to appeal granted in each case.
- Appeal dismissed in each case.
- The Registrar directed to bring to the attention of the relevant prison authorities the Court's strong recommendation that each appellant be given every reasonable opportunity to participate in rehabilitative courses during their custody.
Key Takeaways
- A sentencing judge's observation that intoxication is "not a mitigating feature" will not necessarily constitute legal error if, read in context, the remarks convey only that intoxication does not licence criminal conduct, consistent with R v Fletcher-Jones.
- The principle from R v Coleman does not require intoxication to be treated as automatically mitigating in all circumstances; how it operates depends on the context of the sentencing remarks as a whole.
- In dismissing the appeals, the Court of Criminal Appeal affirmed that a six-year sentence for armed robbery involving a sustained knife-point abduction of a stranger was appropriate and not disproportionate.
- Sufficient objective seriousness, including the use of a weapon, the duration of the offending, and the vulnerability of the victim, can outweigh personal mitigating circumstances even where offenders have pleaded guilty.
- The Court of Criminal Appeal has the capacity, when dismissing an appeal, to append recommendations to its orders concerning the rehabilitation of appellants in custody, directing the Registrar to notify relevant authorities accordingly.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 90A (detaining a person with intent to hold for advantage), s 97(1) (armed robbery), s 154AA(1) (stealing a motor vehicle)
- Criminal Appeal Act 1912 (NSW), s 6
Cases:
- R v Coleman (1990) 47 ACrimR 306
- R v Fletcher-Jones (1994) 75 ACrimR 381
- R v Johnson [1917] 17 SR(NSW) 481
- R v Sorlie [1925] 25 SR(NSW) 532