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Court of Criminal Appeal 2 March 1999

Regina v Raad

[1999] NSWCCA 27

Assault & violenceTheft & propertyFirearms & weapons

Citation: Regina v Raad [1999] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 2 March 1999
Judge(s): Abadee J, Barr J, Adams J

Background

The applicant had pleaded guilty in the District Court to one count of armed robbery under s 97 of the Crimes Act, which carries a maximum penalty of 20 years penal servitude. The offence involved entering the Five Dock home of an elderly man living alone, producing a large knife, and stealing cash, a bank card, personal jewellery, a video camera, and a television set. During the robbery, the applicant also demanded and obtained the victim's PIN number, later using the stolen Visa card in seven separate transactions.

Judge Kirkham sentenced the applicant on 16 December 1997 to seven years penal servitude, comprising a minimum term of five years and three months and an additional term of one year and nine months. The sentencing court also took into account matters on two Form 1 documents, one relating to the card fraud arising from the robbery and another covering unrelated offences committed while the applicant was on bail.

The applicant, who appeared in person before the Court of Criminal Appeal, sought leave to appeal against that sentence, despite not formally raising sentencing in his grounds of appeal.

  • Whether the sentencing judge had erred in law or fact in imposing the sentence
  • Whether the sentence was excessive or outside the available sentencing discretion
  • Whether special circumstances existed under s 5(2) of the Sentencing Act justifying a departure from the standard ratio between minimum and additional terms

Decision

The Court found no error of law or fact in the sentencing judge's approach. Abadee J noted that Judge Kirkham had fully considered the applicant's subjective circumstances and properly addressed general deterrence, placing the objective criminality of the offence in the mid to upper range. That characterisation was not open to challenge, in the Court's view.

The sentencing judge had found no special circumstances warranting adjustment under s 5(2) of the Sentencing Act, and the Court of Criminal Appeal saw no basis to disturb that finding. The aggravating features of the offence were significant: the victim was 68 years old and living alone, the robbery occurred in his home, the applicant used a knife, and the obtaining of the PIN number demonstrated a clear intention to commit further offences.

The Court also noted that the two Form 1 documents worked in the applicant's favour at sentence, absorbing a range of additional criminal conduct. One aggravating feature was that the unrelated Form 1 offences had been committed while the applicant was on bail for the armed robbery.

Adams J, while agreeing with the outcome, added that the sentence imposed by the District Court was, in his view, considerably lenient given the seriousness of the offending.

Orders Made

  • The application for leave to appeal the sentence is refused.

Key Takeaways

  • In dismissing the application, the Court of Criminal Appeal confirmed that a sentence will not be disturbed on appeal where the sentencing judge has properly considered the objective and subjective circumstances and made no identifiable error of law or fact.
  • Placing the objective criminality of a home invasion with a knife in the mid to upper range of seriousness was upheld as unassailable on the facts, particularly where the victim was elderly and living alone.
  • A finding of no special circumstances under s 5(2) of the Sentencing Act was affirmed, meaning the standard relationship between minimum and additional terms was maintained.
  • The Form 1 procedure benefited the applicant by allowing multiple related and unrelated offences to be taken into account without attracting separate sentences, but the commission of offences on bail remained a relevant aggravating factor.
  • Sufficient grounds to establish that a sentence is excessive require demonstrable legal or factual error; disagreement with the sentencing judge's exercise of discretion is not, on its own, a basis for appellate intervention.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 97 (armed robbery using an offensive weapon; maximum 20 years penal servitude)
- Sentencing Act (NSW), s 5(2) (special circumstances affecting the ratio between minimum and additional terms)
- Criminal Procedure Act (NSW) (Form 1 procedure for taking additional offences into account)