Citation: Regina v George & Johnson [1999] NSWCCA 243
Court: NSW Court of Criminal Appeal
Date: 30 June 1999
Judge(s): Sully J; Bell J
Background
Two co-offenders were convicted by a jury in the District Court of robbery with wounding under s 96 of the Crimes Act 1900, following a violent attack on a man they had spent the evening drinking with. After leaving a flat late at night, both men attacked the victim with broken beer bottles as he walked along a poorly lit street. The victim, who was heavily intoxicated, handed over his wallet in the hope the attack would stop, but the assault continued. He ultimately escaped to a police station some 800 metres away, having sustained lacerations to his skull, face, lip, and neck.
District Court Judge Cooper sentenced each man to nine years' penal servitude, though with slightly different apportionments between minimum and additional terms. The variation reflected the fact that one offender was already serving a sentence for unrelated break-and-enter matters, and the sentencing judge applied the totality principle (the requirement that the overall sentence remain proportionate to the whole of the offending) accordingly.
Both men, unrepresented, sought leave to appeal their sentences to the Court of Criminal Appeal, each arguing the sentences were excessive or that the sentencing judge had failed to take relevant mitigating factors into account.
Legal Issues
- Whether the sentencing judge erred in law in a manner that warranted appellate intervention
- Whether the sentences of nine years' penal servitude were manifestly excessive for robbery with wounding under s 96 of the Crimes Act 1900
- Whether mitigating factors, including co-operation with police, alcohol dependency, an offered plea to a lesser charge, and expressions of remorse, had been properly considered
- Whether the different apportionment of minimum and additional terms between the two co-offenders was appropriate
Decision
The Court found no error of law in Judge Cooper's sentencing remarks. Sully J reviewed the sentencing judge's treatment of both the objective seriousness of the offence and the subjective circumstances of each offender, and was satisfied the judge had correctly identified and applied the relevant considerations.
On the mitigating factors raised by the first appellant, the Court observed that an offered plea to a lesser charge carries limited weight where the Crown did not accept it and subsequently proved the more serious charge beyond reasonable doubt before a jury. While the Court accepted the appellant may have had a genuine alcohol problem, this was noted to have been available as a matter before the sentencing judge and did not demonstrate any legal error in the outcome.
The Court also addressed the second appellant's submission that he had not personally inflicted the injuries. It confirmed that both men had been found by the jury to have been present and actively participating in both the robbery and the wounding. Each was therefore equally culpable, whether as principal in the first degree or principal in the second degree (the distinction between the person who directly commits an act and one who assists or is present aiding its commission). Equal objective culpability followed from equal participation in the common criminal enterprise.
The Court characterised the sentences as severe but not harsh, noting the offending was serious, committed against a vulnerable victim who had a right to move freely in a public place without being attacked, and occurred against a background of prior criminal antecedents in both cases.
Orders Made
- Leave to appeal granted in respect of each application
- Both appeals dismissed
Key Takeaways
- No error of law was established in the sentencing judge's approach to either the objective gravity of the offence or the subjective circumstances of each co-offender.
- An offered plea to a lesser charge provides limited mitigation where the Crown rejects that plea and succeeds in obtaining a conviction for the more serious offence at trial.
- Where co-offenders are found by a jury to have jointly participated in a robbery and wounding, each bears equal objective culpability regardless of which individual directly inflicted particular injuries.
- Under the totality principle, different apportionments of minimum and additional terms between co-offenders receiving the same aggregate sentence can be appropriate where one offender is already serving a prior sentence.
- In dismissing the appeals, the Court of Criminal Appeal reaffirmed that a victim's intoxication does not diminish an offender's culpability; the victim's right to move lawfully in a public space exists regardless of their condition.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 96 (robbery with wounding, maximum penalty 25 years' penal servitude)
Cases cited: No cases were cited in the judgment text provided.